State Consumer Disputes Redressal Commission
Pawan Kumar vs Premium Acre on 13 January, 2015
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
UNION TERRITORY,
CHANDIGARH
Consumer Complaint No.
141 of 2014
Date of Institution
20.10.2014
Date of Decision
13.01.2015
Pawan Kumar s/o Sh.Ram Lal
Arya, r/o House No.5171/2, Modern Housing Complex, Manimajra, Chandigarh.
.Complainant
V
E R S U S
1] M/s Premium Acre 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, SAS Nagar, Mohali.
3] M/s Premium Acre Infratech Pvt. Limited 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.
4] Taneja Developers & Infrastructures Ltd., Regd. Office :
9, Kasturba Gandhi Marg, New Delhi 110001, through its Manager.
... Opposite Parties
BEFORE:
JUSTICE SHAM SUNDER (RETD.), PRESIDENT
SH.DEV
RAJ, MEMBER
SMT.PADMA PANDEY, MEMBER Argued by:
Sh.Sandeep Bhardwaj, Advocate for the complainant.
Sh.Bhaskar Sharma, Advocate for Opposite Parties No.1 &
2. Sh.Pankaj Chandgothia, Advocate for Opposite Party No.3.
Sh.Manoj Vashisht, Advocate for Opposite Party No.4.
PER PADMA PANDEY, MEMBER In brief, the facts of the case are that Opposite Party No.1 entered into an Agreement through its Director Mr.Sanjay Jain i.e. Opposite Party No.3 with Opposite Party No.4 on 24.12.2009, wherein, Opposite Parties No.1 to 3 purchased the plots from Opposite Party No.4 in order to construct the apartments in order to gain profit. Copy of the Agreement dated 24.12.2009, Supplementary Agreement dated 07.04.2010 and copy of the General Power of Attorney dated 02.05.2012 are at Annexures C-1 to C-3. It was stated that the complainant applied for registration of the apartment with the Opposite Parties vide application form dated 21.09.2010 (Annexure C-4) and they blocked unit No.124 at The Courtyard, Sector 110, TDI City. It was further stated that the basic sale price of the unit was told to be Rs.50,40,000/-, which included car parking and preferential location charges were mentioned as Rs.8,56,800/-. The EDC was told to be Rs.3,50,400/-. As such, the total cost of the apartment, as per welcome letter (Annexure C-5) was Rs.62,47,200/-. Opposite Parties No.1 to 3 issued the allotment letter dated 23.10.2010 (Annexure C-6) to the complainant and confirmed about receipt of an amount of Rs.10,08,000/- from him. Opposite Parties No.1 to 3 gave a discount of Rs.3,52,800/- to the complainant towards the inaugural offer. As such, the total amount payable by him, after the discount was Rs.58,94,400/- including EDC and PLC.
2. It was further stated that the Buyer Agreement dated 09.03.2011 (Annexure C-6/A) was executed between the complainant and M/s Premium Acres Infratech Pvt. Ltd. The complainant kept on paying the installments to Opposite Parties No.1 to 3 and they issued the account statement (Annexure C-7). It was further stated that the complainant paid an amount of Rs.10,08,000/- from his own and rest of the amount of Rs.47,39,226/- paid through bank after availing of the loan facility from LIC Housing Finance Limited and, as such, he paid the total amount of Rs.57,47,226/-. Copy of the account statement issued by the Finance Company is at Annexure C-8. It was further stated that there was some dispute between Opposite Parties No.1 to 3, in August, 2013, and they tried to extract more money through its Director, namely Parminder Singh Sehgal and started issuing notices with false demands. It was further stated that the Opposite Parties had increased the cost of the apartment in contravention of the allotment letter. He mentioned the cost of the apartment to be Rs.88,90,520/- and also mentioned that an amount of Rs.42,09,852/- was still outstanding on account of restoration charges, service tax, club charges, IFMS, Sewerage, electricity, water, service tax on services, delayed interest payment, inflation, additional maintenance charges etc. The builder mentioned that the villa was ready for possession and the complainant was directed to pay an amount of Rs.42,09,852/- within 30 days, failing which, the allotment was liable to be cancelled. He was also directed to collect an amount of Rs.24,18,989.88 from the office of Opposite Parties No.1 and 2, in case of non-payment of Rs.42,09,852/- resulting into cancellation of the allotment of unit/villa. Copy of the legal notice is at Annexure C-9. The complainant duly replied to the said legal notice vide letter dated 10.09.2014 (Annexure C-10). It was further stated that Opposite Parties No.1 and 2 were not even aware about the amount deposited by the complainant and wrongly mentioned the amount received to be Rs.46,80,668/-. The account statement sent alongwith the legal notice was sufficient to prove the unfair trade practices.
3. It was further stated that the photographs (Annexure C-11 Colly.) clearly proved that the villa was not complete and not ready for possession. It was further stated that the earnest money was adjusted towards the restoration charges, the discount deleted from the account statement and the other charges were levied on their own without any justification in order to extract more money against the terms and conditions of the Agreement. It was further stated that the unit was not ready for possession, as the necessary permissions had not been issued by the concerned authorities. It was further stated that all the charges were illegal. No completion certificate had been issued till the date of filing of the complaint and the basic amenities were not in existence. No amount was due against the complainant and the Company was liable to pay an amount of Rs.15,000/- per month i.e. Rs.2,55,000/- from 08.03.2013 till the handing over of possession. It was further stated that the Opposite Parties threatened the complainant to pay the amount and also issued the cancellation notice dated 6.10.2014 (Annexure C-12) to him, after deducting the major amount on their own, which tantamounted to unfair trade practice. It was further stated that the Opposite Parties were deficient, in rendering service, as also, indulged 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.
4. Opposite Parties No.1 and 2, in their reply by way of affidavit of Mr.Ranjit Singh, General Manager, stated that the complainant was given due opportunities for taking possession of the villa/unit No.124, but he failed to do so. It was further stated that the complainant had to bear charges on account of inflation. The complainant opted for the Construction Linked Plan, while entering into an Agreement for the purchase of unit/villa and he did not abide by the conditions mentioned in the said plan. It was further stated that as per the Construction Linked Plan, the construction is generally commensurate with the extent of amount paid by the complainant, and the replying Opposite Parties inspite of that, completed their villas/units. It was further stated that the complainant with a view to harass and extract money from the replying Opposite Parties, filed the complaint. It was further stated that Mr.Sanjay Jain was appointed as Director of the Company and he was having malafide intention from the very beginning. In order to cheat the Company, he embezzled crores of rupees of the Company on the pretext of purchase of land in its name and also by doing other illegal acts, which caused a great loss to Opposite Parties No.1 and 2. It was further stated that a complaint under Section 156(3) of Cr.P.C. was filed against Ex-Director Mr.Sanjay Jain, Amit Jain and Sachin Garg, which is pending before the Court of the Judicial Magistrate 1st Class, Chandigarh. A separate complaint with regard to fraud, embezzlement and cheating was made by the replying Opposite Parties against Opposite Party No.3. It was further stated that Mr.Sanjay Jain in connivance with various customers of the Company was committing fraud, as he was issuing NOCs/receipts for the payments received in back date only, with the sole motive to cause loss.
5. It was further stated that the complainant was given due opportunity to take possession of unit No.124 but he failed to do so for the reasons best known to him. It was further stated that as per Clause 11 of the Agreement, the complainant was liable to pay the inflation charges and other charges. It was further stated that the complainant was also asked by Opposite Parties No.1 and 2, many times, to come and take possession after clearing the requisite maintenance dues and completing other formalities, but he failed to comply with the same. It was further stated that allotment of the unit/villa No.124 was cancelled by the replying Opposite Parties due to non-payment of the balance amount of Rs.42,09,852/-. Copy of the summary dated 12.08.2014 is Annexure R-4. It was further stated that Opposite Parties No.1 and 2, issued legal notice dated 20.08.2014 (Annexure R-5) due to non payment of balance amount of Rs.42,09,853/- (in fact Rs.42,09,852/-) and after the expiry of 30 days being mentioned in the same, for the payment of balance amount, cancellation notice dated 06.10.2014 (Annexure R-7) was issued to him. It was further stated that in view of Clause 4(f) of the Buyers Agreement, the Company could, in its sole discretion, condone the delay in payment by charging interest @18% per annum in the event of the Company waiving the right of forfeiture and accepting interest on that account from the allottee. It was further stated that as per Clause 9 of the Agreement, possession of the said premises was likely to be delivered by the Company to the villa allottee within a period of 24 months (18 months plus 6 months grace) from the date of Agreement subject to force majeure circumstances, and on receipt of complete payment of the basic sale price and other charges due and payable upto the date of possession according to the payment plan applicable to him. It was further stated that Opposite Parties No.1 and 2 were neither deficient, in rendering service nor indulged into unfair trade practice.
6. Opposite Party No.3, in its reply by way of affidavit of Mr.Sanjay Jain, stated that the replying Opposite Party was the Director of Opposite Parties No.1 and 2 Company. It was further stated that the complainant should not suffer on account of differences between the Directors of the Company (present and former). It was further stated that the averments and claims made by the complainant are correct, as per the documents issued to him. It was further stated that this Commission had already decided a similar Complaint Case No.120 of 2014 titled Yashpal Kapoor Vs. Premium Acres Infratech & others and in the said case, Mr.Sanjay Jain was Opposite Party No.6 and the complaint was rightly dismissed qua him (Mr.Sanjay Jain), who is Opposite Party No.3 in the present case. It was prayed that complaint against Opposite Party No.3 be dismissed.
7. Opposite Party No.4, in its reply, by way of the affidavit of Mr.Rohit Gogia, authorized signatory, stated that the complaint was not maintainable against it as there was no relationship of consumer and service provider between it and the complainant. It was further stated that Opposite Party No.4, is in the business of development of various residential and commercial complexes in various cities of India like Gurgaon, New Delhi, Agra, Moradabad, Sonepat, Kundli, Panipat, Karnal, Mohali and Chandigarh. It was further stated that apart from potential users, who seek allotment of individual plots, various investors also make their investments by making bulk purchases of plots in various townships developed/being developed by Opposite Party No.4. It was further stated that in the present case, Opposite Parties No.1 and 2, approached Opposite Party No.4 for the purchase of 150 fully developed residential plots measuring 192 sq. yards each in order to develop the same and to further sell off the same to the prospective buyers. It was further stated that Opposite Party No.4 is not having any interference with the development, and construction activity, by Opposite Parties No.1 and 2 over the aforesaid 150 plots. It was further stated that Opposite Party No.4 is not even a party to the Agreement dated 24.12.2009 executed between Opposite Parties No.1 and 2 and the complainant. It was further stated that the complaint is wholly misconceived against Opposite Party No.4. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.4, nor it indulged into unfair trade practice.
8. The Parties led evidence, in support of their case.
9. The complainant, filed rejoinder to the written statement of the Opposite Parties, wherein he reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of the Opposite Parties.
10. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
11. The Counsel for the complainant, submitted that the unit/villa, in question, was booked by the complainant and as per the welcome letter (Annexure C-5), the total cost thereof was Rs.62,47,200/- which included the basic sale price, car parking, PLC and EDC and Opposite Parties No.1 to 3 gave the discount of Rs.3,52,800/-. As such, the total amount payable by the complainant after the discount was Rs.58,94,400/- including EDC and PLC. He further submitted that Opposite Parties No.1 to 3, issued the allotment letter dated 23.10.2010 (Annexure C-6) to the complainant and confirmed about the receipt of an amount of Rs.10,08,000/- from him. He further submitted that the Buyers Agreement dated 9.3.2011 (Annexure C-6/A) was executed, between the complainant, and M/s Premium Acres Infratech Pvt. Ltd. at Chandigarh and he opted for Construction Linked Installment Plan. He further submitted that the complainant had already paid an amount of Rs.57,47,226/- towards the price of the villa to Opposite Parties No.1 to 3, after availing of loan of Rs.47,39,226/- from LIC Housing Finance Limited. He further submitted that as per the Agreement, possession was to be delivered within 24 months from the date of execution of the same. He further submitted that later on, on account of change of Directors, the price of the villa was enhanced and the Opposite Parties demanded more amount from the complainant. He further submitted that M/s Premium Acres Infratech Pvt. Ltd. sent a legal notice dated 20.08.2014 (Annexure C-9) and the complainant was directed to pay an amount of Rs.42,09,852/- within 30 days, failing which, the allotment was liable to be cancelled. He was also directed to collect an amount of Rs.24,18,989.88 from the office of Opposite Parties No.1 & 2, on non-payment of the amount, resulting into cancellation of allotment. He duly replied the said notice. He further submitted that Opposite Parties No.1 and 2 were even not aware of the amount deposited by the complainant and wrongly mentioned the amount received to be Rs.46,80,668/-. He further submitted that M/s Premium Acres Infratech Pvt. Ltd. cancelled allotment of the villa vide cancellation notice (Annexure C-12), though the huge amount had already been paid by the complainant.
12. The Counsel for Opposite Parties No.1 and 2, submitted that the complainant did not make the entire payment and a sum of Rs.42,09,852/- was due against him. He further submitted that the said unit/villa was fully constructed and ready for possession, but the complainant did not pay the balance amount. He further submitted that Opposite Parties No.1 & 2 could increase the cost due to inflation. It was further submitted that Opposite Party No.3 in connivance with various customers of the Company, was committing fraud by issuing NOCs/receipts, for the payments received in the back date only, with the sole motive to cause loss and to commit fraud with the Company. It was further submitted that the Villa/Unit No.124 was ready for possession and there was no delay in giving/offering possession on the part of Opposite Parties No.1 & 2.
13. The Counsel for Opposite Party No.3 submitted that Mr.Sanjay Jain was the Director of Opposite Parties No.1 and 2 Company. He further prayed for dismissal of the complaint against Opposite Party No.3 because similar complaint i.e. Complaint Case No.120 of 2014 titled Yashpal Kapoor Vs. Premium Acres Infratech & others had already been decided by this Commission, in which, the complaint was rightly dismissed against Mr.Sanjay Jain.
14. The Counsel for Opposite Party No.4, submitted that the complaint was not maintainable against it, as there was no relationship of consumer and service provider between the complainant and Opposite Party No.4. It was further submitted that Opposite Party No.4 was not even a party to the Buyers Agreement, executed between the parties. It was further submitted that the complaint was wholly misconceived against Opposite Party No.4.
15. Admittedly, the complainant applied to the Company vide application dated 21.09.2010 for the allotment of unit No.124 having an approximate area (super area) of 2040 sq. feet, as mentioned at page No.60 of the Buyer Agreement (Annexure C-6/A), which was executed between M/s Premium Acres Infratech Pvt. Ltd. and him on 09.03.2011. It is evident from the allotment letter dated 23.10.2010 (Annexure C-6) that the complainant opted for the Construction Linked Installment Plan (at page 52). The total basic sale price was Rs.50,40,000/- plus Rs.3,50,400/- on account of external development charges and preferential location charges were Rs.8,56,800/-. By allowing discount of Rs.3,52,800/-, the total price of the villa/unit, in question, came to be Rs.58,94,400/-. The Construction Linked Installment Plan, opted by the complainant, is extracted hereunder:-
Basic Sales Price 50,40,000.00 EDC 3,50,400.00 PLC for Corner 10% of BSP and 10% wide road PLC 8,56,800.00 Discount 3,52,800.00 Composite Sale Price (CSP) 58,94,400.00 At the time of registration 20% of BSP 10,08,000.00 Within three months of allotment 10% of BSP 5,04,000.00 Within three months of first installment 10% of BSP 5,04,000.00 On commencement of demarcation of plot 10% of BSP 5,04,000.00 On casting of ground floor roof 7.50% of BSP 3,78,000.00 On casting of first floor roof 7.50% of BSP 3,78,000.00 On casting of second floor roof 7.50% of BSP + 25% of EDC 4,65,600.00 On start of brick work & internal plastering 7.50% of BSP + 25% of EDC + 50% of PLC 8,94,000.00 On start of flooring 5% of BSP + 25% of EDC + 50% of PLC 7,68,000.00 On start of internal electrification 5% of BSP + 25% of EDC + Less 50% of Discount 1,63,200.00 On start of internal plumbing 5% of BSP + less 50% of Discount 75,600.00 On final notice of possession 5% of BSP + IFMS 2,52,000.00 100% 58,94,400.00
16. A perusal of the aforesaid chart shows that total price of the unit was Rs.58,94,400/-, which was to be paid by the complainant. It is abundantly clear from the statement of account dated 03.05.2014 (Annexure C-7) that M/s Premium Acres Infratech Pvt. Ltd. had received an amount of Rs.46,80,668/- from the complainant. A bare perusal of the statement of loan account No.311200000200 dated 09.09.2014 (Annexure C-8) issued by LIC Housing Finance Limited (at page No.58) shows that a sum of Rs.10,66,558/- was paid by the LIC Housing Finance Ltd. on 14.06.2014. Thus, the complainant paid a total sum of Rs.57,47,226/- to M/s Premium Acre Infratech Pvt. Ltd., out of the total amount of Rs.58,94,400/- and Rs.1,47,174/- (Rs.58,94,400/- - Rs.57,47,226/-) remained due against the complainant.
17. On the other hand, the Opposite Parties sent a legal notice dated 20.08.2014 (Annexure C-9) to the complainant through Regd. Post alongwith summary (Annexure A), a sum of Rs.42,09,853/-, depicted hereunder, was shown due against the complainant :-
Total Dues Principal Rs.21,06,140.00 Service Tax Rs.54,465.00 Interest Rs.4,69,106.00 Add: Other Charges Electrification Charges Rs.50,000.00 Water Meter Charges Rs.40,000.00 Sewerage Charges Rs.20,000.00 Add: Service Tax on Other Charges Rs.13,596.00 IFMS (RWD) Rs.1,00,000.00 Add: Inflation Charges Rs.2,96,928.00 Holding Charges (If any)
-
Restoration Charges 5040000*20% Rs.10,08,000.00 Total (A) Rs.41,58,234.84 Charges Paid to TDI:-
Club Membership fee Rs.50,000.00 (***Club Membership Charges paid to be TDI recreation and amusement Ltd.) Add: Maintenance Charges (Nov14 to March15)(192 sq. Yards x 1.50 x 5) + Service Tax @12.36% Rs.1,618.00 (***Maintenance Charges paid to be Cannes Property Management Service) Total(B) Rs.51,617.98 Total Receivable Rs.42,09,853 In the legal notice, aforesaid, the complainant was directed to pay an amount of Rs.42,09,852/- within 30 days, failing which, the allotment was liable to be cancelled. He was directed to collect an amount of Rs.24,18,989.88 from the office of Opposite Parties No.1& 2. He duly replied the notice. Thereafter, Opposite Parties No.1 and 2 cancelled the allotment of the complainant vide letter dated 06.10.2014 (Annexure C-12).
18. The first question, that falls for consideration, is, as to whether M/s Premium Acre Infratech Pvt. Ltd. illegally demanded an amount of Rs.42,09,852/-, as per the legal notice, from the complainant. The demand raised is partially illegal. The summary (Annexure R-4) (at page No.124) sent by Opposite Parties No.1 and 2 to the complainant, shows the total cost of the unit/villa to be Rs.88,90,520/- and, as such, demand of huge amount of Rs.42,09,852/- from him was raised, inspite of the fact that he had already paid an amount of Rs.57,47,226/- (Rs.46,80,668/-
+ Rs.10,66,558/-) vide Annexure C-7 and C-8. However, an amount of Rs.2,25,214/- towards various amenities (Electrification charges of Rs.50,000/-, Water meter charges of Rs.40,000/-, sewerage charges of Rs.20,000/-, IFMS charges of Rs.1,00,000/-, service tax on other charges of Rs.13,596/- and maintenance charges of Rs.1618/-) is still due against the complainant. The demand regarding the club charges is totally illegal, because such clause does not exist in the Agreement, at all. Opposite Parties No.1 and 2 also demanded an enhanced principal amount of Rs.21,06,140/-, inflation charges of Rs.2,96,928/-, restoration charges of Rs.10,08,000/- and delayed interest payment, without any supporting calculations or documents to prove that these charges are recoverable from the complainant by Opposite Parties No.1 and 2, which tantamounts to unfair trade practice. As regards inflation charges, Opposite Parties No.1 and 2 failed to place on record the prices of the commodities on the basis of wholesale index. The prices at the time of purchase of the unit/villa and at the time of the construction have also not been disclosed. Opposite Parties No.1 and 2 have failed to place on record any document to prove that the inflation is on the basis of All India Wholesale Index and, therefore, the same is not payable by the complainant.As regards the restoration charges of an amount of Rs.10,08,000/- demanded by Opposite Parties No.1 and 2, they are levying these charges, as per their wishes in order to extract money because there is no clause for any restoration charges in the Agreement. Out of the demand of Rs.42,09,852/- demand of Rs.2,25,214/- is only legal. The remaining demand is illegal.
19. So far as payment of excess PLC to the extent of Rs.1,76,400/- is concerned, as per the Agreement (Annexure C-1) executed between Opposite Parties No.1 to 3 and Opposite Party No.4, wherein, Clause No.6 reproduced as under :-
6. That it has been further agreed between the parties that the Preferential Location Charges of the plots would be additional to the actual cost and as under :
a. Park adjoining/facing = 2.5% b. Corner = 3.5% c. 60 Feet or above road = 10% M/s Premium Acre Infratech Pvt. Ltd. in contravention of the Agreement (Annexure C-1) charged the PLC for corner and wide road as 10% each of the BSP, as per Annexure C-6 (at page No.52), which actually should be 3.5% for the corner. As per Annexure C-6, the Basic Sale Price of the unit was Rs.50,40,000/- and PLC of Rs.8,56,800/- charged by Opposite Parties No.1 and 2 from the complainant but PLC should be 10% for wider road and 3.5% for corner, as per Annexure C-1 (at page No.20) and PLC should be charged as 13.5% of BSP i.e. Rs.6,80,400/- but M/s Premium Acre Infratech Pvt. Ltd. has charged Rs.8,56,800/- vide Annexure C-6 (at page No.52). As such, Opposite Parties No.1 and 2 are also liable to refund an amount of Rs.1,76,400/- charged in excess towards the PLC.
20. Opposite Parties No.1 and 2 mentioned in para No.5 of the legal notice (Annexure C-9) and in the statement of account attached with the legal notice (at page No.84) that the complainant made the payment of Rs.46,80,668/- but he stated that he made the payment of Rs.57,47,226/- (Rs.46,80,668/- + Rs.10,66,558/-) vide Annexure C-7 and C-8. It is clearly proved from Annexure C-7 that M/s Premium Acres Infratech Pvt. Ltd. received an amount of Rs.46,80,668/- from the complainant. Annexure C-8 at page 78 of the file, which is the statement of loan account of the complainant, clearly proved that LIC Housing Finance Limited disbursed an amount of Rs.10,66,558/-. So, there is, no doubt, in our mind that the complainant made the payment of Rs.57,47,226/- (Rs.46,80,668/- + Rs.10,66,558/-) to M/s Premium Acre Infratech Pvt. Ltd. Hence, the amount received, as mentioned in the legal notice and statement of account (at page No.84) enclosed with the legal notice, is totally wrong.
21. The next question, which falls for consideration is, as to whether, Opposite Parties No.1 and 2, could cancel the allotment and forfeit the amount. As discussed in the aforesaid paras, when the complainant had already paid the huge amount of Rs.57,47,226/- (Rs.46,80,668/-
+ Rs.10,66,558/-) as against the total sale price of Rs.58,94,400/- including EDC, PLC less discount, the demand raised by Opposite Parties No.1 and 2 vide legal notice dated 20.08.2014 (Annexure C-9) and subsequent cancellation of allotment vide notice/letter dated 06.10.2014 (Annexure C-12) was totally illegal and arbitrary, which amounted to deficiency, in rendering service and indulgence into unfair trade practice on the part of Opposite Parties No.1 and 2.
22. The next question, which falls for consideration, is, as to whether there was any deficiency attributable to Opposite Parties No.1 and 2 in handing over possession of the Villa/Unit, in question, to the complainant. Clause 9 of the Buyer Agreement (Annexure C-6/A), being relevant is extracted hereunder:-
9. That the possession of the said premises is likely to be delivered by the company to the Villa 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 Villa Allottee who shall within 30 days thereof, remit all dues and take possession of the Villa. 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 issue of offer of possession. That if the construction is delayed due to normal course, other than conditions set out in point 10, than the company shall pay Rs.15,000/- per month as delay charges for the period of delay.
23. The Buyer Agreement was executed on 09.03.2011 and computing 24 months period therefrom, M/s Premium Acre Infratech Pvt. Ltd. were required to hand over possession by 08.03.2013. Though Opposite Parties No.1 and 2 vide their legal notice dated 20.08.2014 (Annexure C-9) stated that the unit would be ready for possession subject to final payments by the complainant, yet the fact is that the complainant had made major part of the payment, except a small balance amount of Rs.1,47,174/- (Rs.58,94,400/- - Rs.57,47,226/-). Also an amount of Rs.2,25,214/- towards various amenities (Electrification charges of Rs.50,000/-, Water meter charges of Rs.40,000/-, sewerage charges of Rs.20,000/-, IFMS charges of Rs.1,00,000/-, service tax on other charges of Rs.13,596/- and maintenance charges of Rs.1618/-) i.e. totaling Rs.3,72,388/- (Rs.1,47,174/- + Rs.2,25,214/-) is still due against the complainant. M/s Premium Acre Infratech Pvt. Ltd. did not offer possession of the unit till date. Even the complainant sent reply to the legal notice dated 10.09.2014 (Annexure C-10) to M/s Premium Acres Infratech Pvt. Ltd. through his Counsel and stated that the unit was not ready for possession, as the necessary permissions had not been issued by the concerned authorities enabling it, to hand over possession of the unit to him and no completion certificate had been issued. Thus, the legal notice dated 20.08.2014, vide which, Opposite Parties No.1 and 2, intimated that the unit shall be ready for possession, was only an eyewash. Therefore, Opposite Parties No.1 and 2 failed to offer possession within the stipulated period, for which they were liable to pay penalty. So, M/s Premium Acre Infratech Pvt. Ltd. are liable to pay penalty at the rate of Rs.15,000/- per month, in accordance with the provisions of Clause 9 of the Buyer Agreement (Annexure C-6/A) from 09.03.2013 till handing over the actual physical possession of the unit, in question.
24. The next question, that falls for consideration, is, as to whether, the allotment of unit/villa was legally and validly cancelled by M/s Premium Acre Infratech Pvt. Ltd. It may be stated here, that once it is held that the demand raised by M/s Premium Acre Infratech Pvt. Ltd., vide statements attached with the legal notice dated 20.08.2014, in respect of enhanced principal amount, inflation charges, restoration charges and delayed interest payment, was illegal and arbitrary, the cancellation made by them could also be said to be illegal and arbitrary. Since the cancellation vide letter dated 06.10.2014, has been held to be illegal, the question of claiming revocation/restoration charges does not arise, at all. By cancelling the allotment of the unit, illegally and arbitrarily, Opposite Parties No.1 and 2 were not only deficient, in rendering service, but also indulged into unfair trade practice.
25. The next question, that falls for consideration, is, as to 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, by not delivering the physical possession of the unit, to him, on account of illegal demand of the amount made by Opposite Parties No.1 and 2, which was never due against him, to them. The complainant booked the unit/villa, with the hope to have a shelter over his head, but his hopes were dashed to the ground, when the Opposite Parties, did not deliver possession of the same, despite the fact that the complainant had made major part of the payment, except a small balance amount of Rs.1,47,174/- (Rs.58,94,400/- - Rs.57,47,226/-) and also an amount of Rs.2,25,214/- with regard to electrification charges, water meter charges , sewerage charges, IFMS charges, service tax on other charges and maintenance charges i.e. totaling Rs.3,72,388/- (Rs.1,47,174/- + Rs.2,25,214/-) is still due against him. Till date, delivery of physical possession of the unit/villa, has not been made, to the complainant, by Opposite Parties No.1 and 2. The complainant, thus, underwent a tremendous mental agony and physical harassment, on account of the acts of omission and commission of Opposite Parties No.1 and 2. In this view of the matter, the complainant, in our considered opinion, is entitled to compensation, for mental agony and physical harassment caused to him, at the hands of Opposite Parties No.1 and 2, to the tune of Rs.1 (one) lac, which could be said to be adequate and reasonable.
26. No doubt, Opposite Parties No.1 and 2 submitted in their written statement that Mr.Sanjay Jain had embezzled huge amount of the Company and had played fraud with them and, as such, a criminal case against him and employees, referred to above, was lodged. It may be stated here, that if there was any dispute between Opposite Parties No.1, 2 and its Director Sanjay Jain and he allegedly played fraud with the Company and allegedly embezzled its amount, then the third parties i.e. the consumers were not to suffer. 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 and 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 and 2 had their legal remedy of recovery of the amount allegedly embezzled by Sanjay Jain, Ex-Director, by filing a Civil Suit and also proceeding against him under the criminal law. Opposite Party no.3 is no longer the Director of Opposite Parties No.1 and 2. Thus, no liability can be fastened upon Opposite Party No.3 by the complainant. The complaint against Mr.Sanjay Jain (Opposite Party No.3) deserves to be dismissed.
27. Coming to the liability of Opposite Party No.4, it may be stated here, that the Buyer Agreement (Annexure C-6/A) was executed between the complainant and Opposite Parties No.1 and 2. Even the services of Opposite Party No.4 were not hired by the complainant, and, as such, the question of payment of consideration to it never arose.
Hence, the complaint against Opposite Party No.4 is liable to be dismissed.
28. No other point, was urged by the Counsel for the Parties.
29. For the reasons recorded above, the complaint is partly accepted with costs, against Opposite Parties No.1 and 2, in the following manner:-
(i) Complainant is directed to make the payment of sale consideration of the balance amount of Rs.1,47,174/-
(Rs.58,94,400/- - Rs.57,47,226/-) to Opposite Parties No.1 and 2, within a period of one month from the date of receipt of a certified copy of the order.
(ii) Complainant is also directed to make payment of an amount of Rs.2,25,214/- with regard to electrification charges, water meter charges , sewerage charges, IFMS charges, service tax on other charges and maintenance charges to Opposite Parties No.1 and 2, within a period of one month from the date of receipt of a certified copy of the order.
(iii) Demand letter/Legal Notice dated 20.08.2014 (Annexure C-9), issued by Opposite Parties No.1 and 2, being partially illegal, is set aside to that extent.
(iv) Cancellation of allotment of the unit/villa, in question, being illegal and arbitrary is also set aside.
(v) Opposite Parties No.1 and 2 shall jointly and severally hand over the legal physical possession of the unit, in question, within a period of two months, to the complainant, from the date of receipt of a certified copy of this order, on payment of the legally due amount, by the complainant, as indicated in Clause
(i) & (ii) above.
(vi) Opposite Parties No.1 and 2 shall jointly and severally execute the sale/conveyance deed and get it registered in the name of the complainant after handing over the actual physical possession of unit, in question, as per direction in Clause (v), above, within a period of one month thereafter. The stamp duty, registration charges and all other incidental and legal expenses for execution and registration of sale deed shall be borne by the complainant.
(vii) Opposite Parties No.1 and 2 jointly and severally are directed to refund an amount of Rs.1,76,400/- being the amount of extra PLC charged from the complainant, within two months from the date of receipt of a certified copy of the order.
(viii) Opposite Parties No.1 and 2 jointly and severally shall pay compensation @Rs.15,000/- per month for delay in delivery of possession from 09.03.2013 uptil 31.01.2015 within two months from the date of receipt of a certified copy of the order.
(ix) Opposite Parties No.1 and 2 jointly and severally shall pay compensation @Rs.15,000/- per month for delay in delivering possession beyond 01.02.2015 by the 10th of succeeding month till actual handing over of physical possession.
(x) Opposite Parties No.1 and 2 are further jointly and severally, directed to pay compensation, in the sum of Rs.1,00,000/- for causing mental agony and physical harassment, to the complainant, within two months from the date of receipt of a certified copy of this order.
(xi) Opposite Parties No.1 and 2 are further jointly and severally, directed to pay cost of litigation, to the tune of Rs.20,000/-, to the complainant.
(xii) In case the order is not complied with within the stipulated period, as indicated above, then Opposite Parties No.1 and 2 shall be jointly and severally liable to pay the amount mentioned in Clause (vii) & (viii) alongwith interest @9% per annum from the date of default, till realization and the amount mentioned in Clause (ix) from the date of default till delivery of possession and the amount mentioned in Clause (x) with interest @9% per annum from the date of default till realization, besides payment of costs, to the tune of Rs.20,000/-.
30. However, the complaint against Opposite Parties No.3 and 4 is dismissed with no order as to cost.
31. Certified Copies of this order be sent to the parties, free of charge.
32. The file be consigned to Record Room, after completion.
Pronounced. Sd/-
13/01/2015 [JUSTICE SHAM SUNDER [RETD.] PRESIDENT Sd/- [DEV RAJ] MEMBER Sd/-
[PADMA PANDEY] MEMBER rb STATE COMMISSION Consumer Complaint No. 141 of 2014 (Pawan Kumar Vs. M/s Premium Acre Infratech Pvt. Ltd. & Ors.) Argued by:
Sh.Sandeep Bhardwaj, Advocate for the complainant.
Sh.Bhaskar Sharma, Advocate for Opposite Parties No.1 &
2.
Sh.Pankaj Chandgothia, Advocate for Opposite Party No.3.
Sh.Manoj Vashisht, Advocate for Opposite Party No.4.
Dated _the 13th day of January, 2015
-.-
Vide our detailed order of the even date recorded separately, the complaint has been partly accepted with costs.
[DEV RAJ] MEMBER [JUSTICE SHAM SUNDER (RETD)] PRESIDENT [PADMA PANDEY] MEMBER rb