State Consumer Disputes Redressal Commission
Mrs Madhu Bala vs Wwics Estate Pvt Ltd on 28 August, 2024
ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
Consumer Complaint No.34 of 2023
Date of Institution : 21.07.2023
Reserved on : 09.08.2024
Date of Decision : 28.08.2024
Mrs. Madhu Bala aged 51 years w/o Tilak Raj r/o 22, Teeka Harned,
Tehsil and District Hamirpur (H.P.)
(Aadhar Card No.655997133945, Mobile No.9817012643)
....Complainant
Versus
1. WWICS Estates Pvt. Ltd., A-12, Industrial Area, Phase-VI,
Mohali, Punjab through its Managing Director
(Email:- [email protected])
2. Authorized Officer, WWICS Estates Pvt. Ltd., A-12, Industrial
Area, Phase-VI, Mohali, Punjab.
(Email:- [email protected])
.....Opposite Parties
Complaint U/s 47 of the Consumer
Protection Act, 2019.
Quorum:-
Mr. H.P.S. Mahal, Presiding Judicial Member
Mrs. Kiran Sibal, Member Present:-
For the complainant : Mr. Arvind Kashyap, Advocate For opposite parties : Mr. Amandeep, Legal Executive KIRAN SIBAL, MEMBER:-
The Complainant has filed the present complaint under Section 47 of the Consumer Protection Act, 2019 (in short, "the Act") against the opposite parties (in short "the OPs") for grant of following relief:-
i) The OPs be directed to get the sale deed executed in accordance with law in the name of complainant as entire sale consideration has been paid;Consumer Complaint No.34 of 2023 2
ii) Award compensation of Rs.3,00,000/- for mental and physical harassment and Rs.55,000/- on account of litigation expenses;
iii) Declared the clause granting Rs.5/- per square feet damages for delayed possession to buyer being arbitrary and unjust and grant same compensation/damages to complainant as charged by builder/opposite party on account of delayed payment i.e. 24% interest on the payment already deposited with the opposite parties;
iv) Award interest at the rate of 12% p.a. on the compensation from the date it fell due till the date the same is paid;
v) Any other relief which may deem fit.
2. Brief facts as stated in the complaint are that the complainant agreed to purchase a apartment from OPs at Imperial Heights Mohali and she was allotted apartment No.WEIH/B-802 on eighth floor, Imperial Heights, Sector-115, SAS Nagar Mohali for the basis sale price of Rs.49,68,621/-. The complainant paid advance payment of Rs.7,45,293/- and agreement for sale of apartment was executed on 21.05.2013. The sale deed was to be registered after the payment of entire sale consideration as per payment plan of the agreement. On the basis of agreement dated 21.05.2013, the complainant applied for loan and a tripartite agreement was signed between OP No.1, ICICI Bank and the complainant. The loan was sanctioned and as per payment plan complainant was to pay Rs.53,16,639/-. However, an amount of Rs.1,78,571/- was adjusted as per clause E of the agreement as OP No.1 did not deliver the possession as per the given schedule. Hence, complainant paid a sum of Rs.51,56,438/- after adjustment of the said amount and OPs issued 'No Dues Certificate" on 25.03.2021 and also offered the possession on the same day. The complainant got the possession of the apartment and got it furnished. Thereafter, in the month of March Consumer Complaint No.34 of 2023 3 2023, the complainant requested the OPs to get the sale deed registered, but the OPs informed her that an amount of more than seven lakhs is outstanding against the complainant. Thereafter, when the complainant visited office of OPs on 17.04.2023, the OPs informed her that more than Rs.10 lakh is due towards her and sale deed can be registered only after paying the said amount by her.
The complainant asked the OPs to provide statement of account qua the alleged amount but they declined to give any information. The complainant alleged that the demand of money beyond sale price and even after issuance of No Due certificate, is arbitrary and with intention to extort money. The act and conduct of the OPs also amounts to deficiency in service and unfair trade practice on their part. Hence, the complainant has filed the present complaint and sought relief as prayed for.
3. The OPs appeared through counsel and filed written reply, wherein it raised certain preliminary objections, inter alia, that the complaint is not maintainable as it does not fall within the pecuniary jurisdiction of this Commission; the complainant has concealed the material facts from this Commission and the complaint is nothing more than an attempt to harass the OPs. On merits, OPs stated that the complainant has already been given possession of the flat in question since 25.03.2021 and is happily residing in the said apartment. The cost of the apartment/flat in question was Rs.53,16,639/- along with Rs.2,11,223/- to be paid as Service Tax/GST. The complainant had paid a total amount of Rs.52,28,063/- and a balance payment of Rs.2,99,799/- was Consumer Complaint No.34 of 2023 4 payable, however, out of the said amount an amount of Rs.2,16,852/- has already been adjusted towards relief regarding delayed possession charges. According, an amount of Rs.82,947/- is still outstanding to be paid by the complainant on account of Service Tax/GST charges, which are to be deposited with the tax authorities. The OPs further stated that the complainant has never been refused for getting her sale deed executed and she has been told to get the E-stamp paper issued in her name from the Government Treasury and inform the date on which she would be getting the sale deed executed before the concerned Sub-Registrar. However, the complainant has neither got the E-stamp papers issued nor got the sale deed typed, without which the sale deed cannot be registered. There is no deficiency in service or unfair trade practice on the part of the OPs. After denying the other averments made in the complaint, the OPs prayed for dismissal of the complaint.
4. In order to substantiate the allegations made in the complaint, the complainant annexed with the complaint her affidavit along with copies of documents i.e. agreement dated 21.05.2013 Ex. C-1, allotment letter Ex.C-2, tripartite agreement Ex.C-3, No due certificate Ex.C-4, offer of possession letter Ex.C-5, acknowledgment regarding adjustment of Rs.1,78,571/- Ex.C-6, legal notice Ex.C-7, postal receipts Ex.C-8 & C-9.
5. On the other hand, OPs have filed affidavit of Sh. Rajiv Bajaj, authorized representative in support of their version. Consumer Complaint No.34 of 2023 5
6. We have heard learned counsel for the parties and have gone through the record carefully.
7. The learned counsel for the complainant has vehemently contended that the complainant had purchased the apartment in question from the OPs and an agreement was executed between the parties on 21.05.2013. As per payment plan complainant was to pay Rs.53,16,639/-, however, against the said price she paid a total sum of Rs.51,56,438/- after adjustment of Rs.1,78,571/- towards delayed possession charges. The learned counsel further argued that the complainant has already paid the full and final payment towards her allotted apartment and No due certificate was also issued by the OPs on 25.05.2022, but despite that they failed to execute the sale deed in her favour. The OPs have not produced any document to show how the calculations have been made by them as stated in their written reply. The learned counsel further argued on the similar lines as stated in the complaint and prayed for acceptance of the present complaint.
8. On the other hand, the learned counsel for the OPs has argued that the complainant has already been issued the letter of possession on 25.03.2021 and she is residing in the flat in question since then peacefully without any disturbance and enjoying the amenities. The complainant has already been given rebate of Rs.2,16,852/- on account of delayed possession charges and an amount of Rs.82,947/- is still payable by the complainant on account of Service Tax/GST to the government authorities along with interest as applicable. The learned counsel further argued on the similar Consumer Complaint No.34 of 2023 6 lines as stated in the written reply and prayed for dismissal of the present complaint.
9. We have given our thoughtful consideration to the contentions raised before us by the learned counsel for the parties.
10. First of all, we would like to dispose of the objection of the OPs that this Commission does not have pecuniary jurisdiction as the complainant has claimed a total amount of Rs.3,55,000/- along with 12% interest from 24.04.2023 onwards, therefore the total amount does not reach the threshold of Rs.50 Lakhs. In this regard, it is pertinent to mention here that the total sale consideration of the said flat is Rs.53,16,639/-, as per agreement Ex.C-1 and the complainant has already paid the said amount after adjustment of Rs.1,78,571/-(Ex.C-6) against delay possession penalty, to the OPs. No doubt, the complainant in her complaint has not sought refund but she has alleged deficiency in service and unfair trade practice on the part of the OPs for non-execution of the sale deed. Moreover, as per notification dated 30.12.2021 issued by the Ministry of Consumer Affairs, Food and Public Distribution, Government of India, the State Commission shall have jurisdiction to entertain the complaints where the value of goods or services paid as consideration exceeds fifty lacs but does not exceed rupees two crore. In the present case, it is clear that the consideration paid by the complainant to the OPs is Rs.53,16,639/-, after adjustment of delayed possession penalty, towards her unit, which fell above Rs.50 lacs and below Rs.2 crore. Accordingly, this Commission has got pecuniary jurisdiction to Consumer Complaint No.34 of 2023 7 entertain and decide the present complaint. Hence, the objection raised by the OPs is hereby rejected.
11. Now, we proceed to decide the complaint on merits. The factual matrix of the complaint is that the complainant purchased an apartment in the residential project in question developed by the OPs for the total sale consideration of Rs.53,16,639/-. It is also not in dispute that the possession of the apartment was offered to the complainant on 25.03.2021 (Ex.C-5) and she is residing in the apartment. The case of the complainant is that she has already paid the entire due amount to the OPs towards her apartment in question and OPs have also issued the 'No Due Certificate' dated 25.03.2021 (Ex.C-4), but despite the said fact, they failed to execute the sale deed in her favour. On the other hand, the case of the OPs is the complainant had paid a total amount of Rs.52,28,063/- and a balance payment of Rs.2,99,799/- was payable towards balance sale consideration. However, out of the said amount an amount of Rs.2,16,852/- has already been adjusted towards relief regarding delayed possession charges and an amount of Rs.82,947/- is still outstanding to be paid by the complainant on account of Service Tax/GST charges, which are to be deposited with the tax authorities.
12. The moot question to be decided in the present case is whether there is deficiency in service on the part of the OPs qua non-execution of the sale deed or not? To iron out the said controversy, we have perused the evidence placed on record as well as pleadings of the parties. The categoric stand of the OPs is that the complainant has already been given possession of the flat in Consumer Complaint No.34 of 2023 8 question on 25.03.2021 and she has been happily residing in the said flat. It has also been submitted that an amount of Rs.2,16,852/- on account of delayed possession charges in handing over the flat has already been adjusted against the total sale consideration of the flat, however, an amount of Rs.82,947/- remains to be paid by the complainant on account of Service Tax/GST, which are to be deposited with the tax authorities and the same is payable by the complainant. Be that as it may, from the close scrutiny of Ex. C-4, which is 'No Due Certificate' dated 25.03.2021, reveals that the OPs have issued the said certificate against unit No.WEIH/B-802 allotted to the complainant. The relevant part of the same is reproduced as under:-
"This is to inform you that we have been received all due amount of from Mrs. Madhu Bala the total receivable payment for Unit No-WEIH/B-802 in imperial Heights, Sector-115, K-L Highway which includes Basic Sale Price, other charges and service tax."
A bare perusal of above said certificate shows that OPs have received all due amount from the complainant qua the unit in question, which included the basic sale price, other charges as well as service tax. Therefore, the contention of the OPs that an amount of Rs.82,947/- as service tax/GST is still remains to be paid by the complainant, is not tenable. Once, a 'No Due Certificate' has already been issued by the OPs, then nothing else survives, especially when the OPs have failed to prove on record by leading any cogent evidence by way of any demand notice or statement of account etc. that the said amount of Rs.82,947/- was payable by the complainant. The complainant has specifically pleaded in her complaint that she Consumer Complaint No.34 of 2023 9 time and again requested the OPs to executed the sale deed and has also issued legal notice, but they failed to do the needful. A perusal of legal notice dated 24.04.2023 shows that the complainant requested the OPs to execute the sale deed, but the said notice has not been replied by the OPs, hence we are of the considered view that there is deficiency in service on the part of the OPs qua non- execution of the sale deed in favour of the complainant. During the course of arguments, a question was put to the representative of the OPs with regard to the execution of the sale deed to which he replied that the OPs are ready to execute the sale deed provided the complainant seeks appointment from the concerned authority and to inform the date to OPs and they would execute the sale deed in her favour. Accordingly, the OPs are liable to execute the sale deed in favour of the complainant, provided that the complainant shall approach the concerned authority to seek appointment for registration of the sale deed and to inform the same to the OPs. The complainant is also entitled for composite amount of compensation for causing harassment and mental agony to the complainant as well as litigation expenses.
13. So far as the contention of the complainant that she is entitled for interest @ 24% p.a. on account of delayed possession of the flat, is concerned, we find that the OPs, vide acknowledgement receipt dated 25.05.2022 (Ex.C-6) has already informed the complainant that an amount of Rs.1,78,571/- has been adjusted against delay possession penalty. Even the OPs have already issued the No Due Certificate qua the flat in question. The Consumer Complaint No.34 of 2023 10 complainant has duly accepted the same and has never raised any objection prior to filing of the present complaint with the OPs that the said adjustment is not sufficient. Hence, we do not find any force in the contention raised by the complainant and the same is hereby rejected.
14. Sequel to above discussion, the complaint is partly allowed against the OPs with the following directions:-
i) The OPs are directed to get the sale deed executed in favour of the complainant provided that the complainant shall get the appointment from the concerned authority and to inform the date of appointment to the OPs.
ii) to pay a composite amount of compensation on account of harassment and mental agony and litigation cost to the tune of Rs.25,000/-.
iii) It is made clear that the registration charges shall be borne by the complainant at the time of execution of the sale deed in her favour.
15. Parties are directed to comply with the order within 60 days from the date of receipt of certified copy of the order.
16. The appeal could not be decided within the stipulated period due to heavy pendency of Court cases.
(H.P.S.MAHAL) PRESIDING JUDICIAL MEMBER (KIRAN SIBAL) MEMBER August 28, 2024 dv