National Consumer Disputes Redressal
Dinky E.K. Augustine vs M/S. Bhagirathi Abasan Pvt. Ltd. & 8 Ors. on 25 March, 2019
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 2754 OF 2017 1. DINKY E.K. AUGUSTINE ...........Complainant(s) Versus 1. M/S. BHAGIRATHI ABASAN PVT. LTD. & 8 ORS. Oriental House,6-C, Elgin Road, Kolkata-700020 2. M/S NAVARAG PLAZA PVT.LTD. Oriental House,6-C, Elgin Road, KOLKATA-700020 3. M/S. GANAPATI TIEUP PVT. LTD. Oriental House,6-C, Elgin Road, KOLKATA-700020 4. M/S. SWAGATAM DISTRIBUTORS PVT.LTD. Oriental House,6-C, Elgin Road, KOLKATA-700020 5. SMT. INDU PRABHA MODI, WIFE OF SRI DEOKINANDAN MODI, 10, LORD SINHA ROAD, KOLKATA-700071 6. SRI KRISHNA MODI, SON FO SRI DEOKINANDAN MODI, 10, LORD SINHA ROAD KOLKATA-700071 7. SMT. ALKA, MODI, WIFE OF SRI DEOKINANDAN MODI, 10, LORD,SINHA ROAD, KOLKATA-700071 8. SHRI ANIRUDH MODI, SON OF SRI ASHOK KUMAR MODI, 10, LORD SINHA ROAD, KOLKATA-700071 9. MR. ASHOK MODI, MANAGING DIRECTOR, EDEN GROUP, ORIENTAL HOUSE, 6-C, ELGINL ROAD, KOLKATA-700020 ...........Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT HON'BLE MRS. M. SHREESHA,MEMBER
For the Complainant : Mrs. A. K. Augustine, In person For the Opp.Party : Mr. Prabir Basu and Mr. Sarba Sunder Chatterjee, Advocates Dated : 25 Mar 2019 ORDER MRS. M. SHREESHA, MEMBER This Complaint has been filed under Section 21 (a) (i) of the Consumer Protection Act, 1986 (in short "the Act") against the Opposite Parties, seeking the following reliefs:
The Vendor/ Opposite Parties to complete the construction of the said schedule mentioned Flat and hand over the said Flat in habitable condition as per the amenities promised in the brochure within one month from the date of the Hon'ble Commission's order by executing proper deed of conveyance in favour of the complainant.
Failing to deliver the booked Flat with all specification as mentioned in the agreement, the OP may be directed to return the entire amount of Rs.1,50,00,000/- along with interest @ 18% p.a. The Vendor/ Opposite parties to compensate your Complainant by paying an amount of Rs.80,00,000/- for causing extreme financial loses and also mental, physical and intellectual suffering as detailed in the body of the complaint due to their careless and intentional harassing, negligence and delay Compensation of Rs.10,00,000/- in the form of liquidated damage/ damages as this Hon'ble Commission deem fit and proper, Also Rs.1,00,000/- towards cost of litigation and other expenses.
Any other relief or reliefs as this Hon'ble Commission deem fit and proper;
Pass such other order/ orders as your Honour would deem fit and proper."
2. The brief facts as set out in the Complaint are, that the Complainant booked Flat No. 4A, on 06.03.2013 by paying an advance amount of ₹2,00,000/-, in addition to ₹6,180/- paid towards service tax. Thereafter, an Agreement of Sale was executed between the Complainant and the Opposite Parties on 16.11.2013 for the subject Flat admeasuring 2281 sq. ft. super area together with one specified covered car parking space and one unspecified car parking space on the ground floor of the said premises in the building known as "Eden Imperial" along with staff quarter admeasuring 121 sq. ft. lying between the 3rd and 4th floor staircase at 16/1 Palm Avenue, for a total sale consideration of ₹2,04,37,600/-, out of which a sum of ₹1,00,00,000/- has already been paid to the Opposite Party before the registration of Agreement of Sale, together with ₹14,84,608/- towards stamp duty. Additionally, a sum of ₹50,00,000/- was paid to the first Opposite Party on 06.03.2015. It was averred that as per the terms and conditions of the Agreement for Sale, the Opposite Parties were to make the Flat ready and fit for occupation by 31.12.2013 with a grace period of 8 months.
3. It was averred that in Article VII, Clause 7.6 and 7.8 of the Agreement it was stated that immediately after the Flat was ready and fit for occupation, the vendor shall serve notice to the purchaser and within 7 days of receipt of the said notice, the purchaser should take possession, failing which, it shall be deemed that the purchaser has taken possession of the said Flat. A few days after the payment, when the Complainant's mother visited the site it was found that the workers were using the subject Flat to mix cement and sand and to store materials for the work of other Flats. The said matter was brought to the notice of the Managing Director Mr. Ashok Modi, but there was no response. The interior work was not started despite repeated requests. Instructions were given to the site engineer Mr. Dev Raj regarding their choice of tiles to be placed in the bathroom and kitchen walls and workers were using very poor quality of marble. The Complainant's mother requested Mr. Ashok Modi that she should be allowed to purchase better quality of marble and granite, which was required in the kitchen. In spite of repeatedly requesting the engineer, the measurement of the marble and granite required for the work in the Flat was never provided. It was only in March, 2015 that the marble measurement was given and without any delay the Complainant purchased the marble and when the measurement for the granite was given, it was also immediately purchased and delivered at the site. But even after that the work in the Flat was not complete. As the Complainant lost her husband, she has authorised her mother to interact with the Opposite Parties and many complaints were made to the Managing Director verbally as well as by letters, but there was no response.
4. It was pleaded that according to the terms and conditions of the subject Agreement, the Opposite Parties were bound to execute the Sale Deed in favour of the Complainant and deliver peaceful and actual possession of the subject Flat with all the amenities mentioned in the brochure including 'Common Roof Garden' which has been clearly mentioned in the advertisement in the 'The Telegraph' dated 02.03.2013 and also in the Brochure. The representation was made on 28.06.2016, which was received by the Opposite Parties on 30.06.2016 and also on 01.07.2016, but despite receiving the letters, the Opposite Parties did not discharge their liability. Finally the Complainant received one letter on 21.07.2016 referring to the Complaint she had raised in her representation dated 28.06.2016 and it was stated that all the issues referred by her would be suitably addressed. Thereafter, no action was taken to execute the Sale Deed and to deliver peaceful possession of the Flat. Hence the Complainant approached this Commission seeking the aforenoted reliefs.
5. The Opposite Parties filed their Common Reply stating that an Agreement for Sale dated 16.11.2013 executed between the Complainant and the Opposite Parties for sale of the Flat No. 4A, admeasuring 2284 sq. ft. for a total sale consideration of ₹2,04,37,600/-, out of which, only a sum of ₹1,50,00,000/- has been paid by the Complainant. Vide email dated 19.08.2014, the Opposite Parties sought confirmation from the Complainant with respect to the following points:
" a) The Italian Marble Flooring for the entire Flat will be with Botticino which you have chosen from the living & dining of the model Flat.
b) As discussed and chosen by you, we would be using three inches border at living & dinning area floor of dark empredor (Italian Marble) and the extra cost for the same is ₹10,000/-.
c) As discussed and chosen by you, we would increasing the height of the skirting from 4" to 6" only in the living/ dinning area and the costing for the same is ₹30,000/-
d) The civil work for kitchen and the granite material and laying would be provided and done by you."
6. Thereafter, letter dated 27.09.2014 was sent by the Complainant's mother to the 9th Opposite Party demanding the following changes:
"1. ....(a) The switches in the bedrooms are to be about 18" higher than the model Flat.
(b) There are provisions for only three fans in the drawing cum dining room of the model Flat. But I want to have six switches in order to have better breeze.
2 .... I want to direct the contractor to do the flooring with marble slabs which have minimum cracks. If the contractor is not able to get the marble with minimum degree of cracks, I shall get it done with my mistry and he has to pay to my mistry. The rate of my mistry has been e-mailed to you yesterday. There may not be much difference between the two qualities. Whatever the little difference between the two, I am willing to pay."
The ninth Opposite Party agreed to make the aforenoted changes demanded by the Complainant's mother as a special case considering her old age.
7. Thereafter, a letter dated 30.09.2014 was addressed to the first Opposite Party and the Complainants mother sought for discount of ₹5,91,000/- in consideration of the changes demanded by her vide letter dated 27.09.2014. An email dated 15.10.2014 was addressed by the Opposite Parties giving the Complainant's mother the following information:
"1) I have got the following proposal from our civil department and accordingly we can issue a Credit Note of Rs.4,00,000/- against cost of marble and tiles Rs.88,000/- against Labour charges for completing the marble and tiles work for your Flat by your Contractor. However the cost of cement and sand shall be borne by us.
2) Regarding the extra fan points, it can be provided on payment of extra cost to the Electrical Contractor on actual basis provided you arrange installation of the false ceiling.
3) The Architect has not permitted the installation of the sliding windows at this moment which will affect the outer elevation of the project.
4) Grills can not be installed from the outside of the Flat as this will again effect the external elevation of the project but can be installed from the inside. The Architect will be providing the design to keep the outer look similar.
5) The cost of increasing the heights of the switchboard will be Rs.500/- per point."
It was informed that a written confirmation was required from the Complainant for the aforesaid changes and vide letter dated 25.11.2014 the first Opposite Party even informed the Complainant that they were agreeable to the Complainant's proposal for deduction of ₹5,91,000/- for the works to be done by the Complainant. The Complainant was called upon to complete the work so that it was not delayed any further and on 07.12.2014 a demand was made to pay an amount of ₹50,00,000/-. Vide letter dated 09.03.2015, the first Opposite Party informed the Complainant and her mother that the building is lying ready for possession since August 2014 and in terms of Clause 7.8 of the Agreement, requested them to complete the inside works and arrange to pay the entire amount together with interest without further delay.
8. Subsequently, the Complainant visited the Opposite Parties and requested that the marble tiles and granite to be fixed and polished by the Opposite Parties; that they do not want six fan points as earlier stated by them. Owing to the old age of the Complainant, the Opposite Parties agreed to the request but, however, informed them that no furhter changes would be entertained and that the discount amount would be reduced to ₹4,29,640/-. Subsequently, the Complainant's mother started picking quarrels with the personnel of the Opposite Parties and sending false and frivolous Complaints. The Opposite Parties duly completed the marble flooring and vide letter dated 03.05.2015 submitted a fresh calculation with respect to the details of the marble fixing and bathroom wall tiles, amounting to ₹2,11,907/-. The Complainant was informed that the credit amount as such now amended to ₹3,79,093/-. They were also called upon to supply the bathroom wall tiles so that the work can be completed. The Complainant instead of doing the needful, repeatedly misbehaved with the Opposite Parties and started creating hindrances in the works of the Flat. Thereafter, a meeting was held on 15.07.2016, when further changes were demanded. Vide letter dated 21.07.2016, it was informed that the work in the Flat has been resumed in full swing and the electrical work was about to finish. It was pleaded that bathroom wall tiles were not supplied by the Complainant despite repeated requests therefore the Opposite Parties were forced to purchase the tile from their own fund to complete the work. Moreover, as a very special case, the Opposite Parties changed the elevation by changing the sliding doors as demanded by the Complainant and in the process also incurred extra cost. The Complainant is not taking the possession of the subject Flat only to avoid paying ₹62,56,898/-. The possession was not offered to the Complainant only on account of the fact that the balance amount was never paid. In fact, the Complainant should pay the balance amount with interest @ 18% p.a. and take possession and that there is no deficiency of service on their part.
9. The Complainant filed her Affidavit by way of Evidence and marked Exhibit-1 (copy of newspaper clipping), Exhibit-2 (relevant pages of brochure), Exhibit-3 (Application confirmation details), Exhibit-4 (Payment receipts with TDS), Exhibit-5 (copy of Agreement of sale dated 16.11.2013), Exhibit-6 (copy receipt of cost of marble and granite), Exhibit-7 (copies of letters written to the Opposite Party), Exhibit-8 (copy of the Complainant's letter dated 28.06.2016), Exhibit-9 (copy of reply to Opposite Party No. 1 dated 21.07.2016) and Exhibit-10 (copy of heads of expenses incurred towards Flat NO. 4A) on her behalf.
10. The Opposite Parties filed their Affidavit by way of Evidence and marked Exhibits Ex.R-1 (copy of the ledger account of the Complainant), Ex.R-2 (copy of email dated 19.08.2014 of the Opposite Parties), Ex.R-3 (Copy of the letter dated 27.09.2014 sent by the Complainant's mother to the OP NO. 9), Ex.R-4 (Copy of the letter dated 30.09.2014 sent by the Complainant's mother), Ex.R-5 (Copy of email dated 15.10.2014), Ex.R-6 (Copy of the letter dated 25.11.2014 of OP NO. 1 to the Complainant), Ex.R-7 (Colly) (Copy of the letter dated 09.03.2015 of OP NO. 1 to the Complainant), Ex.R-8 (Copy of the letter dated 28.03.2015 of OPs to the Complainant), Ex.R-9 (Copy of the letter dated 03.08.2015 of OPs), Ex.R-10 (Photograph of the building complex of the project), Ex.R-11 (Photograph of the Flat of the Complainant), Ex.R-12 (Copy of the possession letter of one of the Flat buyers with respect to Flat No. 4B in the same project 'Eden Imperial') and Ex.R-12 (Copy of the possession letters with respect to Flat No. 2, 6A and 8B in the same project 'Eden Imperial').
11. It is an admitted fact that the Agreement of sale was executed on 16.11.2013 for Flat No. 4A admeasuring 2281 sq. ft. in "Eden Imperial" for a total sale consideration of ₹2,04,37,600/-, against which the Complainant has paid an amount of ₹1,50,00,000/-. For the sake of brevity, the admitted correspondence between both the sides is not being reproduced. Letters dated 08.04.2015 and 02.06.2015 were addressed by the Complainant to the Managing Director seeking the clearance of rubbish in her Flat, requesting for sliding windows and for changes with respect to the rod in the living room and change of tiles and granite. On 06.10.2015, a letter was addressed to the Managing Director seeking the exact measurement of the tiles and granite which is required. The Opposite Parties vide letter dated 21.07.2016, stated that all the issues would be referred to subsequently. Another letter was addressed to the Managing Director of the Complainant on 01.08.2016 that the expensive granite purchased by them was cut very badly and fixed in the kitchen by a new contractor without intimating them. It was stated in the letter dated 28.06.2016 that possession was not given as per the stipulated time.
12. The Opposite Parties rely on the letter dated 19.08.2014, which has been addressed to the Complainant informing that the entire marble flooring would be with the botticino, which has been chosen from the model Flat and as per the discussion border at the living and dining area would also be provided. The civil work for the kitchen and the granite would be provided. Vide letter dated 15.10.2014, the Opposite Parties have informed the Complainant that on receipt of proposal from the civil department, a credit note of ₹4,00,000/-was being issued against the cost of marble and tiles and ₹88,000/- against labour charges. The cost of cement and sand would be borne by the Opposite Parties. With respect to extra fan point, it was stated that the extra cost to the electrical Contractor would be borne by the Complainant on actual basis. The Architecture did not permit installation of sliding windows and that grills cannot be installed from the outside of the Flat as it would affect the external elevation of the project. It was also informed to the Complainant that the cost of increasing the height of the switch board would be ₹5,000/- per point. It is relevant to mention here that vide letter dated 01.07.2015 the Opposite Parties have offered delivery of possession of the subject Flat subject to the balance amount which is pending to be paid by the Complainant. It was submitted by the learned Counsel appearing for the Opposite Parties that the possession was offered way back in 2015 and letters dated 10.07.2014, 23.08.2014, 24.09.2014, 08.10.2014 and even 09.03.2015 was addressed to the Complainant to pay the balance amount of ₹55,87,600/- together with service tax of ₹2,07,188/- and interest on the balance amount would be calculated from 07.03.2015 till the date of payment. But still the balance amount was not paid by the Complainant and therefore the possession could not be given in totality.
13. The Complainant's mother, who was present in person vehemently contended that the construction was still not complete as per the terms and conditions of the Agreement and that there was no Occupation Certificate and that she seeks refund of the amount paid with interest @ 18% p.a. Having regard to the submissions of both sides and keeping in view the contention of the learned counsel for the Opposite Parties that the Flat is completed, we are of the considered view, that the Complainant shall pay the balance amount plus service tax to the Opposite Parties within four weeks from the date of receipt of a copy of this order and the Opposite Party shall deliver possession within four weeks still thereafter. Interest amount to be paid by the Complainant is not being awarded as the Completion Certificate copy was given to the Complainant only at the time of final hearing across the Bench. If the Complainant does not pay the balance amount within the stipulated period the Opposite Parties shall refund the principle amount paid by the Complainant with interest @ 10% p.a. from the date of respective dates of deposit till the date of realisation.
14. In the result, this Complaint is allowed in part directing the Complainant to pay the balance principle amount due together with the service tax and also stamp duty and registration charges which are due and payable to the Opposite Parties within four weeks from the date of receipt of a copy of this order and the Opposite Parties shall deliver peaceful possession of the subject Flat and execute the Sale Deed within four weeks still thereafter. If the Complainant is not inclined to pay the balance due consideration the Opposite Parties shall refund the amount paid by the Complainant with interest @ 10% p.a. from the respective dates of deposit till the dates of realisation. We also award cost of ₹25,000/- to be paid by the Opposite Parties to the Complainant.
......................J R.K. AGRAWAL PRESIDENT ...................... M. SHREESHA MEMBER