State Consumer Disputes Redressal Commission
Anamika Dhamija vs Znr Builders And Developer on 3 June, 2022
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA PANCHKULA Consumer Complaint No.445 of 2017 Date of the Institution:21.07.2017 Date of Decision: 03.06.2022 Mrs. Anamika Dhamija W/o Sh.Ajay Dhamija, R/o H.No.857-A, Sector 3, Faridabad, District Faridabad. .....Complainant Versus M/s ZNR Builders & Developers Private Limited, Corporate office: F-90/33, 2nd Floor, Okhla Industrial Area, Phase I, New Delhi through Industrial Area, Phase I, New Delhi through its Directors/Principal Officers. ZNR Builders & Developers Private Limited, Branch Office Tower C, Ground Floor, Sai Vatika Apartments, Sector 63, Faridabad, Haryana through its Authorized Officer. .....Opposite Parties CORAM: S.P.Sood, Judicial Member Suresh Chander Kaushik, Member Present:- Mr.S.S.Momi, Advocate for the complainant. Mr.Rajesh Goswami, Advocate alongwith Mr. R.K.Narang, Advocate for the Opposite Parties. O R D E R
S P SOOD, JUDICIAL MEMBER:
The brief facts of the present complaint are that the complainant booked/purchased an apartment/flat bearing No. TI-8C (Tower No.1,Floor No.8 and Flat No. C), measuring 1700 sq. feet in project namely Sai Vatika Apartments in Sector 63 Faridabad of the opposite parties (O.Ps.) for total basic sale price of Rs.27,90,000/- and out of the said amount, he paid Rs.6,15,160/- at the time of booking. After negotiations, both parties agreed that gross sale price of the flat at Rs.27,90,000/- will be including EDC, IDC and covered basement parking. The service tax will be charge extra as applicable and rest all the taxes/charges were included in the total cost. On 05.04.2011, OPs issued an allotment letter to him. On 01.06.2011, Builder-Buyer's agreement was executed between the parties. As per agreement, the OPs have to complete the construction of the project within 27 +9=36 months. As per clause 20 (i) of the contract, the OPs bound themselves to pay penalty of Rs.4/- per sq. feet if the construction will not be completed within the stipulated period. The OPs delayed the construction work for a period of 30 months and in this way the OPs were liable to pay Rs.2,04,000/- as compensation.
She deposited Rs.Four lacs as lump sum advance amount on 14.11.2015 vide SBI chequeNo.977060 of PBB Noida Branch and requested the OPs to supply the actual statement of account, but till date the OPs intentionally or deliberately did not supply the revised statement. All three charges i.e. Basement car parking charges, EDC & IDC were included in BSP of Builder Buyer's agreement. But despite this fact opposite party sent a letter dated 10.07.2012 for deposition of Rupees 2,55,000/- as EDC. She sought for clarification, but, OPs did not furnish any document. OPs threatened on phone to her to cancel the allotment of the unit and lastly, she deposited the amount of Rs.2,55,000/- Ex.C-4 through cheque No.389080 dated 11.09.2012 under strong protest in writing. OPs vide letter dated 31.10.2015 offered the possession to her and also raised demand of balance amount. The OPs demanded Rs.35,93,405/-,which was excessive as per terms and conditions of agreement. The following amounts which was not payable by the complainant:-
Difference in basic price without any supporting document/other details Rs.49,235/-
Administrative cum legal charges Rs.17,000/-
EDC Rs.2,55,000/-
Labour Cess Rs.25,950/-
Fire Fighting Rs.25,950/-
VAT Rs.2,00,000/-
Moreover, the charges for the other facilities had been raised by the OPs. These charges demanded beyond the expectation and were on higher side, which is as under:-
Solar Water Heating System Rs.15,570/-
Sewage Treatment Plant Rs.34,600/-
Bulk Supply and Electric Meter Rs.1,04,750/-
The complainant requested the OPs to rectify the demand as per agreement, but, to no avail. Till today she paid a total amount of Rs.27,08,500/- plus Rs.69,706/- as service tax total sum Rs.27,78,206/- to the OPs and had also given a cheque for Rs.Four lacs. She requested the OPs to pay the entire excess amount with interest and also to handover the physical possession of the unit in project Sai Vatika at Faridabad but till today the complainant has not received any reply. Legal notice was sent to the OP, but, OPs did not even reply. However, OPs issued reminder letter dated 28.06.2016 to her for a total unpaid balance amount of Rs.10,11,658/-, which is totally unwarranted, arbitrary and illegal. Thus there was clear cut deficiency in service and unfair trade practice on the part of the OPs.
2. Notice of the complaint was issued against the O.Ps. and the written statement was filed, wherein the O.Ps. raised preliminary objections of concealment of true, vital and material facts and complainant herself being guilty and having not come with clean hands as despite the offer of possessions she has not come forward to take possession of the flat for the last more than three years. On 21.10.2015, an occupation certificate was issued by the competent authority. The township comprising of 272 flats in all and almost 240 persons have already got executed of sale deed in their favour and stated residing in the complex.
On merits, it was alleged that presently the OPs have shifted its office from Delhi to Faridabad at Ozone Centre, Sector-12 Faridabad so as to come close to its projects. The complainant has applied for allotment of a flat and was allotted flat bearing No. C on 8th floor, Tower No.1 and Apartment Buyer's agreement was duly executed on 01.06.2011. The basic price was settled for an amounting of Rs.27,90,000/- The EDC and IDC charges were applicable in the State of Haryana since the year 2004-2005. The several other builders have been depositing EDC and IDC with the Department of Town and Country Planning. Government of Haryana. The complainant and her husband Mr.Ajay Kumar Dhamija who requested that they are from the family of the employees of HUDA and Town and Country Planning and they will get the certificate of exemption of EDC and IDC from the concerned department and according to the developer/OP will get refund/adjustment of EDC and IDC from the competent authority in its next due installments of EDC and IDC. However, complainant has failed to produce any such exemption certificate. As per agreement EDC and IDC being deferred subject to production of exemption certificate and basement car parking was also exempted on the assurance that it was not required by her. The complainant has deposited Rs.4,00,000/- lump sum advance amount on 14.11.2015 vide cheque No.977060, but, she has deliberately suppressed the fact that this cheque was never presented in the bank by the OP and the original cheque was still lying unused and un-encashed with the OP. The complainant and her husband were trying to force the opposite party to settle the entire issue and the demand of more than Rs.Seven lacs in a lump sum amount of Rs.Four lacs which was not at all acceptable to the OPs. The complainant was supplied final demand notice alongwith offer of possession dated 31.10.2015. Instead of paying the balance amount they have issued a letter dated 14.11.2015. The complainant has deposited enhanced EDC, which was levied by the Govt. of Haryana. The apartment Buyer's Agreement between the complainant and the answering respondent was executed on 01.06.2011 while the imposition of enhanced EDC has been effected by the notification issued by the Govt. of Haryana in 2012. The OPs have every right to demand EDC and IDC as per normal course of business. As per agreement, the rate per sq.ft. of basic sale price of saleable super area of the apartment as mentioned above is escalation free but is subject to upward revision without notice for increases in external development charge(s), infrastructure development charges, increase on account of additional fire safety measures undertaken, increase in all types of securities, deposits and charges if required to be paid retrospectively by the buyer(s), deposits and charges for supply of bulk/individual electricity connections, monthly maintenance charges as applicable, shall be payable by the buyer(s). Thus there was no deficiency in service and unfair trade practice on the part of the OPs.
3. When the complaint was posted for recording evidence of the parties, complainant-Mrs.Anamika Dhamija CW-1 in her evidence has tendered the documents Ex.C-1 to Ex.C-9 and closed her evidence.
4. On the other hand, in order to rebut the evidence led on behalf of the complainant, O.Ps. have also tendered the affidavit of Mr.Sunil Thakur Sr. Manager of OPs as Ex. RA alongwith documents Ex.R-1 to Ex.R-4 and closed its evidence.
5. This argument have been advanced by Sh.S.S.Momi, learned counsel for the complainants as well as Sh.Rajesh Goswami Advocate alongwith Mr. R.K.Narang, counsel for the opposite parties. With their kind assistance entire records including documentary evidence led during the proceedings of the complaint by the parties has also been properly perused and examined.
6. While unfolding the arguments, it has been argued by S.S.Momi, the learned counsel for the complainants that as far as the Builder Buyer(s) agreement, it is not in dispute. It is also not in dispute that as per the Builder Buyer(s) Agreement, the basic price of the flat was Rs.27,90,000/-. A total sum of Rs.27,78,206/- had been paid by the complainants to the O.Ps. As per terms and conditions of agreement, the possession complete in all respect was to be delivered to the complainants by the O.Ps. within 27 +9 (grace period)=36 months subject to some reservations. The period within which, the possession of the flat was to be delivered had already expired despite depositing the amount of Rs.27,78,206/-. In additional to this, a cheque bearing no. 977060 of SBI Account No.2002679047 of amounting rupees four lacs has also been tendered to the OP. The complainant has made all scheduled payments against agreement. The builder was bound to offer possession in favour of complainant by July 2014, however, the OPs blatantly flouted the condition of agreement, the possession was offered on October 21st 2015. Thus there was gross delay of 15 months on part of the OPs in offering the possession of the apartment. As per agreement Annexure III, the amount of basement car parking (Mandatory) and External Development charges & Infrastructure Development charges (EDC & IDC) were exempted as both the parties have signed Annexure III, which is part of agreement. The OPs wrongly received Rs.2,55,000/- as EDC charges from her. The OP instead of compensating her started raising other illegal and unauthorized demands under various heads beyond the terms and conditions of the agreement. The demand notice issued by the OPs is illegal and wrong and deserves to be set aside. The OPs are also liable to make the payment of interest @ 24% per annum for the delayed in period as well as interest on Rs.2,55,000/- to her, which the OP had charged in the name of IDC and EDC. Learned counsel relied upon the decisions of Hon'ble Punjab and Haryana High Court titled as Vijay Kumar and Anr. Vs. Punjab financial Corporation and another (2002) 3 RCR (Civil) 226, opinion of Hon'ble National Commission in case titled N.Y.Kachawalla Vs. The Orbit Corporation Limited (2014) 3 CPJ 568, Omaxe Limited Vs. Varinder Kaushal, III (2014) CPJ 507 (NC), Classic Homes Apartment Buyers' Association and Ors Vs. Buildmore India Ltd. and Ors. (2012) 4 CPJ 14, opinion of Maharastra State Consumer Commission in case titled SudarshanJagannath Singh and Anr. Vs. Sainath Enterprises (2012) 1 CPJ 20, opinion of Karnataka State Consumer Commission (2011) 1 CPJ 202: (2011) CTJ 203.
7. On the contrary, it has been argued by Mr.Rajesh Goswami, Advocate alongwith Mr. R.K.Narang, the learned counsel for the O.Ps. that complainants have not paid the installment as per the repayment schedule. Vide letter dated 31.10.2015, the OPs have already offered possession to the complainant. There was a delay in making the payment by the complainant. It is true that Builder Buyer's agreement was executed between the parties on 01.06.2011 (Ex.C-2), containing all the terms and conditions for allotment of the flat, for payment of the installments, charging the interest for delayed payment and delivering of possession. Since, there were some unavoidable circumstances and certain reasons which were beyond the control of the O.Ps. for which possession of the flat could not be delivered to the complainants in time. Despite all odds offer of possession was made on 31.10.2015 and now by taking the shelter of this Commission, the complainant is seeking possession and seeking waiver of some charges and demanding interest on the deposited amount whereas infact the amount paid by the complainants had already been invested for making all developmental activities. As per terms and conditions of the agreement, the O.Ps. were bound to deliver the possession of the apartment within 36 months, however, they offered the possession of the flat in question to her on 31.10.2015. The answering O.Ps. have not committed any breach of agreement. The complainant has no right to demand another possession letter and waiver of legal charges as development work was completed in all respects. The complainant has deposited Rs.4,00,000/- lump sum advance amount on 14.11.2015 vide cheque No.977060, but, she has deliberately suppressed the fact that this cheque was never presented in the bank by the OP and the original cheque was still lying unused and un-encashed. The complainant herself is guilty and has not come out with clean hands and despite the offer of possession she has not come forward to take possession of the flat from the last more than three years. On 21.10.2015, an occupation certificate was issued by the competent authority. The township comprising of 272 flats in total and almost 240 persons have duly entered into execution of sale deed in their favour. Thus, the complainants were not entitled for new possession letter, waive of legal charges or interest, compensation as prayed for.
8. In view of the above submission and after careful perusal of the entire record, it is not in dispute that upon floating a project by the builders, apartment was purchased by the complainant for a cost of Rs.27,90,000/- against which an amount of Rs.27,78,206/- had been paid. Builder Buyer Agreement (Ex.C-2) is also not disputed. As per the agreement, the possession of the flat was to be delivered within period of 36 months complete subject to some reservation, but, the possession of the flat in question was not delivered. The O.Ps. offered the possession of the flat to the complainant on 31.10.2015 i.e. after 15 months. The complainant has deposited Rs.4,00,000/- lump sum advance amount on 14.11.2015 vide cheque No.977060, which was not encashed by the OPs.
9. The abstract of payment made to M/s ZNR for apartment No.T1/8C at Sai Vatika Sector 63 Faridabad by the complainant is produced by the OPs, which clearly shows that the builders demanded Rs.15,570/- against solar water heating system, Rs.34,600/- against Sewage Treatment plant, Rs.1,04,750/- against bulk supply and electrical meter, service tax Rs.69706/- ,Rs.17,719/- against service tax payable on balance amount and interenst on payment under head (A) to (D) about damages on account of deficiency in service and delay in possession, is wrong and illegal, which is beyond the agreement. It is a normal practice that the builder should give basic amenities to the residents of the project. OPs should not be demanded illegal charges from her. As per Builder Buyer's agreement dated 01.06.2011, the complainant is exempted for the additional charges i.e. Basement car parking (Mandatory) and External Development charges & Infrastructure Development Charges (EDC & IDC). If any instruction received by the builder from the Govt. of Haryana to increase the IDC and EDC charges, which cannot be burdened upon her as she had already exempted from that amount as per agreement dated 01.06.2011 as payment plan is also part of agreement. The OPs cannot demand the amount of Basement car parking (Mandatory and EDC & IDC) charges from her. Hence, the charges demanded by the OPs under head (A) to (D) is illegal and set aside. The OPs illegally demanded Rs.2,55,000/- vide letter dated 10.07.2012, which complainant deposited vide cheque No.389080 dated 11.09.2012 under pressure.
10. The opposite parties shall raise the demand of service tax, VAT stamp duty, registration fee as per the agreement. It is a normal trend that if anyone purchased a flat or plot, he/she will bear the expenses of taxes as well registration charges, stamp duty. The builder/OPs will charge the expenses of taxes mentioned above on basic price as well as registration fee, stamp duty of the flat. It is admitted that there is delay in delivering the possession of the flat in question for 15 months as per the version of the OPs. To the utter surprise of this Commission and is very pity that inspite of the fact that period of more than 11 years had expired, the complete possession of the flat has not been delivered by O.Ps. As such, there is a clear breach of terms and conditions of the buyers agreement on behalf of the O.Ps. It is the normal trend of the developers/O.Ps. that developer would collect their hard earned money from the individuals and would invest the funds in other projects as a result thereof the project for which the investors have invested their hard earned money is not completed. Resultantly, the delivery of possession or completion of the project is delayed, illegal charges forcefully demanded from the complainant as in the present case. When the project is not complete as such, this Commission is of the considered opinion that there is deficiency in service of opposite parties and thus, complainant is well within her legal rights to get the interest on the amount as prayed for. Even otherwise also there is a strong element of the physical and mental agony caused to the complainant for investing a huge amount and still deprived of not being put into possession of the same and under these constrained circumstances, they had to knock the door of this Commission even for seeking possession letter and interest on the amount as prayed for. In such like cases the Commission had to deal with the developers/O.Ps. with severe hands who are misusing the funds of the individuals.
11. The OPs illegally and wrongfully offered the possession on 31.10.2015 (Ex.C-3) to her without completing the basic amenities. Perusal of the offer of possession letter reveals that the Director General, town & Country Planning, Chandigarh, the designated competent Authority has vide its MemoNo.ZP-478/SD(DK)/2015/20774 dated 21.10.2015 granted permission for occupation, inter-alia, in respect of Tower 1 to Tower 6 and low rise towers No.F-7 to F-12 compositely termed as Sai Vatika apartments at Sector 63, Faridabad. On 21.10.2015, an occupation certificate was also issued by the competent authority. An abstract of possession letter shows that the project was in-complete.
12. As submitted by the O.Ps. that the tower was ready with all basic amenities and the OPs had got issued occupation certificate as well as completion certificate by the authorities concerned. The flat was to be allotted complete in all respects mere providing basic necessities, such as water supply, electricity, sewerage, drainage, rain harvesting system, LED in the building, street lighting, storm water and environmental clearance, without there being any internal fittings complete in all respects, it cannot be considered as fit for residence. The OPs are relying upon letter dated 21.10.2015 treating it to be completion certificate and occupation certificate to have been issued by the concerned authority i.e. DTCP. Perusal of the said letter shows that vide said letter the DTCP has granted permission to occupy subject to payment of Rs.6,80,697/- and with further conditions detailed below:-
"1. The building shall be used for the purposes for which the occupation certificate is being granted and in accordance with the uses defined in the approved zoning regulations/zoning plan and terms and conditions of the licence. Any violations of this condition shall render this occupation certificate null and void.
2. That you shall abide by the provisions of Haryana Apartment Ownership Act, 1983 and Rules framed thereunder. All the flats for which occupation certificate is being granted shall have to be compulsorily registered and a deed of apartment will have to be filed by you within the time schedule as prescribed under the Haryana Apartment Ownership Act 1983. Failure to do so shall invite legal proceedings under the statute.
3. That you shall comply with all the conditions laid down in the memo No.387/FSB dated 11.05.2015 of Commissioner, Municipal Corporation, Faridabad with regard to fire safety measures.
4. That you shall be fully responsible to supply of water as per norms till such time the colony is handed over after final completion. Till a regular piped supply is made available to the colony by HUDA, as agreed by you. You shall bring the potable water through tankers. Further, you will not charge from allottees more than the charges levied by HUDA for providing the water.
5. That you shall obtain the connection for disposal of sewerage and drainage from HUDA after laying the services to the point of external services on payment of prescribed fee and charges including the cost of such connection. You shall also maintain the internal services to the satisfaction of the Director till the colony is handed over after granting final completion.
6. That you shall be solely responsible for disposal of sewage and storm water of your colony till such time these services are made available by HDUA/State Government as per their scheme.
7. That you shall maintain roof top rain water harvesting system properly and keep it operational all the time.
8. That in case some additional structures are required to be constructed as decided by HUDA as later stage, the same will be binding upon you.
9. The basements and stilt shall be used as per provisions of approved zoning plan and building plans.
10. That you shall comply with all the stipulations mentioned in the Environment clearance issued by State Environment Impact Assessment Authority Haryana, Govt. of Haryana vide No. SEIAA/HR/2010/581 dated 20.07.2010.
11. That you shall comply with all the stipulations mentioned in the NOC issued by AAI vide letter no. AAI/NOC/2011/586/5648 dated 27/28.02.2012.
12. The day & night marking shall be maintained and operated as per provision of international Civil Aviation Organization (ICAO) standard.
13. That the outer façade of the buildings shall not be used for the purposes of advertisement and placement of hoardings.
14. That you shall neither erect nor allow the erection of any communication and transmission tower on top of the building blocks.
15. That you shall use light-emitting diode lamps (LED) in the building as well as street lighting.
16. That you shall impose a condition in the allotment/possession letter that the allottee shall use light emitting diode lamps (LED) for internal lighting, so as to conserve energy.
17. That you shall apply for connection for services within 15 days from the date of issuance of occupation certificate and shall submit the proof of submission thereof to this office.
18. That the service plans/estimates for electrical infrastructure shall be submitted to the concerned authority within sixty days of this approval and submit the approval of the same to the Department before applying the completion certificate of the colony under Rule-16 of the Haryana Development and Regulation of Urban Areas Rules, 1976."
19. That provision of parking shall be made within the area earmarked/designated for parking in the colony and no vehicle shall be allow to part outside the premises."
Without compliance of these conditions it could not be treated as occupation certificate for all intents and purposes as such how this could be treated or used by the OPs as occupation certificate free from conditions. OPs have not placed on the file any evidence for compliance of these conditions specifically about connection of water, electricity, sewerage and storm water perhaps was precisely be the reason as to why the offer of possession was issued to different persons at different times. Had the tower been complete in all respects then there would have been no reason for OPs not to have offered piece meal possession to all different allottees. More particularly the conditions imposed by the competent authorities while granting occupation certificate, like the provisions of electricity, such as water supply, sewerage, drainage, rain harvesting system, LED in the building, street lighting, storm water and environmental clearance etc. which were certainly basic necessities for residence. This was definitely an unfair trade practice on the part of the OPs by giving offer of possession for incomplete building and charging illegal charges like administrative cum legal charges, enhanced EDC, solar water heating provisions, sewage treatment plant amount, bulk supply and elec. Meter, camera and fencing charges from the complainants. Considering the above submissions and relying upon the aforesaid decisions, the Hon'ble High Court and Hon'ble National Commission has rightly allowed the complaint against the builders.
13. Hence, the acts of OPs to collect money before getting all the necessary approvals for the project and not giving the confirmed date of handing over possession of the flat in question, demanding illegal charges from her, certainly proves deficiency in their services and indulgence in unfair trade practice.
14. In the light of the above observations, we are of the considered view that the present complaint of the complainants deserves to succeed partly against the opposite parties. Accordingly, the complaint stands allowed partly with directions to the OPs to waive off different types of illegal charges of Solar Water Heating System Rs.15,570/-, Sewage Treatment plant charges Rs.34,600/-, Bulk supply and electrical meter charges Rs.1,04,750/-, service tax of Rs.69,706/-, service tax Rs.17,719/-, additional charges for increased saleable area Rs.49,235/-, EDC/IDC charges Rs.2,55,000/-, Administrative and legal charges for contractor Rs.17,000/-, Labour cess Rs.15,300/- Camera and fencing charge Rs.4000/- and any other interest on the above said amount, which are beyond the agreement. The OPs wrongly or forcefully received Rs.2,55,000/- from her as EDC and IDC charges. The OPs are also directed to refund Rs.2,55,000/- alongwith interest @ 9% per annum from the date of deposit till realization. The complainant has also intendedto deposit Rs.4,00,000/- lump sum advance amount on 14.11.2015 vide cheque No.977060, which was not encashed by the OPs, thus the OPs are also directed to return the cheque of Rs.4,00,000/- to her. The opposite parties are also entitled to charge, service tax on the basic sale price of the flat, VAT, stamp duty, registration fee as per the agreement. The complainant will bear the expenses of taxes as well as registration charges, stamp duty and fire fighting charges. OPs are also directed to handover the physical possession of the apartment in question complete in all respects to her after adjusting/refunding the above said amount. The OPs are also directed to pay compensation of Rs.50,000/- (Fifty Thousand only) on account of deficiency in service, harassment and mental agony suffered by the complainant by the acts of the OPs alongwith Rs.50,000/- (Fifty Thousand only) as litigation expenses. In case, there is a breach in making payment within the stipulated period of 30 days, in that eventuality, the complainant would further be entitled to get the interest @ 12% per annum, for the defaulting period. It is also made clear that for non-compliance, the provisions enshrined under section 72 of the C.P.Act would also be attracted.
June 03rd, 2022 Suresh Chander Kaushik, S.P.Sood Member Judicial Member S.K.(Pvt.Secy)