State Consumer Disputes Redressal Commission
Mrs. Prabhjot Kaur vs M/S Premium Acres Infratech Pvt. Ltd. on 16 June, 2015
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Consumer Complaint : 56 of 2015 Date of Institution : 25.03.2015 Date of Decision : 16.06.2015 1. Mrs. Prabhjot Kaur wife of Sh. Harjit Singh, Aged 43 years, resident of 53/2, Balbir Road, Judges Colony, Dehradun, Uttrakhand. 2. Sh. Harbhajan Singh son of Shri Ishar Singh, resident of 53/2, Balbir Road, Judges Colony, Dehradun, Uttrakhand. 3. Smt. Darshan Kaur wife of Sh. Harbhajan Singh, resident of 53/2, Balbir Road, Judges Colony, Dehradun, Uttrakhand. ......Complainants. Versus 1. M/s Premium Acres Infratech Pvt. Ltd., SCO No.56-57, 3rd Floor, Sector 17-B, Chandigarh through its Managing Director. IInd Address: Regd. Office 17/6, Anand Parbat, Industrial Area, Near Gali No.10, Rohtak Road, New Delhi. 2. M/s Premium Acres Infratech Pvt. Ltd., Villa No.205, TDI City, Premium Acres Court Yard, Sector 110-111, S.A.S. Nagar (Mohali). 3. M/s Taneja Developers & Infrastructure Ltd., 9, Kasturba Gandhi Marg, New Delhi - 110001. 4. Parminder Singh Sehgal, Director, Premium Acres Infratech Private Limited, R/o H.No.1127, Sector 42-B, Chandigarh. Second Address: House No.61-62, Sector 70, Mohali. ....Opposite Parties. Complaint under Section 17 of the Consumer Protection Act, 1986. BEFORE: SH. DEV RAJ, PRESIDING MEMBER.
MRS. PADMA PANDEY, MEMBER.
Argued by:
Sh. Vaneesh Khanna, Advocate for the complainants.
Sh. Parmjinder Singh, Advocate for Opposite Parties No.1, 2 and 4.
Sh. Aman Sharma, Advocate for Opposite Party No.3.
PER DEV RAJ, PRESIDING MEMBER The facts, in brief, are that the complainants had purchased one residential unit bearing No.19302 (First Floor) Avenue Delux, vide allotment letter dated 16.02.2011 (Annexure C-1), in the project of the Opposite Parties namely "The Courtyard" at "TDI City", Sector 110, Mohali, S.A.S. Nagar, Punjab. It was stated that the complainants opted for down payment plan as offered by the Opposite Parties at the time of booking of the flat. It was further stated that the total cost of the unit was arrived at Rs.25,68,050/-, after allowing discount of Rs.2,48,750/-. It was further stated that the complainants were required to pay a sum of Rs.5,40,000/- at the time of registration, Rs.18,93,050/- within three months of booking/allotment and balance amount of Rs.1,35,000/- was payable at the time of final notice of possession.
2. It was further stated that the complainants deposited a sum of Rs.24,33,050/- till 25.04.2011 with the Opposite Parties vide receipts (Annexure C-2). It was further stated that more than 6 months after receiving full consideration of the unit from the complainants in the month of May 2011, the Opposite Parties signed a Buyer Agreement on 10.12.2011 i.e. nearly ten months after the date of booking (Annexure C-3). It was further stated that as per Clause 9 of the Agreement, possession was to be offered to the allottee within a period of two years from the date of booking of the flat i.e. by 10.12.2013 and in case of delay in construction due to normal course, the Company was required to pay Rs.7,000/- per month as delay charges for the period of delay. It was further stated that Opposite Party No.1 wrote letter dated 4.2.2013 (Annexure C-4) to the complainants wherein besides confirming the payments made till that time, it was informed that the unit shall be ready for possession on 15th May, 2013 and asked the complainants to deposit a sum of Rs.3,79,443/-as pending dues and to keep ready an amount of Rs.1,61,883/- towards stamp duty charges. It was further stated that the Opposite Parties assured that they shall take 60-90 days from the date of confirmation by the complainant and final payment. It was further stated that the complainants sent reply to letter dated 4.2.2013, which reached their office on 3.4.2013 (Annexure C-5) and also gave confirmation for taking possession (Annexure C-6).
3. It was further stated that the Opposite Parties wrote letter dated 15.4.2013 (Annexure C-7) to the complainant asking to pay the outstanding amount of Rs.3,79,443/-. It was further stated that the complainants deposited the amount Rs.2,65,000/- including the service tax, IFMS charges and the dues towards water meter, electricity meter etc. as demanded by the Opposite Parties. It was further stated that subsequent to this last and final payment, a statement of account was issued by the Opposite Parties on 15.4.2013, clearly stating that the complainants had paid the full amount and no further amount was payable (Annexure C-10). It was further stated that despite receiving the full payment, the Opposite Parties neither completed the construction of the flat, in question, nor offered possession of the same within the promised 60-90 days period. it was further stated that after a gap of more than 18 months since the date of last and final payment, instead of handing over possession of the flat, the Opposite Parties sent a legal notice dated 29.10.2014, (Annexure C-24) asking the complainants to deposit a sum of Rs.5,58,874/- within 15 days, failing which, the allotment was to be cancelled and the complainants could collect refund of Rs.20,64,540/- from the Opposite Parties.
4. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to handover possession of the flat to the complainants, in question, in impeccable condition. pay Rs.7,000/- per month as delay charges for delay in handing over possession from the date of full and final payment till the date of handing over of possession; pay Rs.5 Lacs, as compensation, for harassment caused to the complainants as well as litigation expenses, impose exemplary penalty/fine.
5. Opposite Parties put in appearance on 29.04.2015. In their joint written version, Opposite Parties No.1, 2 and 4, took up certain preliminary objections to the effect that the complainants are not consumers as they are living in Dehradun for the past so many years and are purchased the property for resale or commercial purpose; that this Commission lacks the territorial jurisdiction on the ground that as per Clause 36 of the Agreement, the Courts situated at Delhi shall have exclusive jurisdiction to adjudicate any dispute arising out of the Agreement; and that the present complaint involved forgery of documents specially Annexure C-3, suspected role in embezzlement, pricing and the dispute of area, which cannot be decided summarily and can only be dealt with by the Civil Court.
6. On merits, it was admitted that the complainants purchased one residential unit from Opposite Parties No.1, 2 and 4 bearing No.19302 (First Floor), Avenue Delux in their project. It was denied that the complainants opted for down payment plan. It was further denied that allotment letter (Annexure C-1) was correct but the same was a forged and fabricated document, whereas the correct and legal allotment letter is Annexure R-6. It was further stated that the complainants opted for construction linked plan. It was further stated that the total BSP of the flat was Rs.27,00,000/-, apart from EDC charges, service tax, building cess, club charges, IFMS charges, sewerage, electricity, water charges etc. (Annexure R-3), which the complainants were liable to pay. It was further stated that the total arrears against the complainants was to the tune of Rs.18,82,350/- updated up-to 28.04.2015.
7. It was further stated that the total payment received was to the tune of Rs.20,07,284/- and receipt (Annexure C-2) was a forged and fabricated document. It was further stated that the Buyer Agreement (Annexure C-3) was not signed by the authorized person of the answering Opposite Parties and the same was procured through fabricated and illegal means. It was further stated that in order to maintain good relations, the answering Opposite Parties were honoring the agreement (Annexure C-3) subject to payment of the outstanding dues by the complainants and the answering Opposite Parties were to hand over the Possession within a period of 90 days after finishing the last touches to the flat, in question. It was further stated that the Opposite Parties were not liable to pay Rs.7,000/- per month for delay and the Opposite Parties were covered under force majure conditions, which occurred due to the embezzlement of funds by their former employee. It was further stated that FIR no.64 dated 23.2.2015 was registered against Opposite Party No.3 for embezzlement of crores of rupees and vide Annexure R-9, the Civil Court has stayed the construction work. It was further stated that there was no delay from the side of the answering Opposite Parties but the delay was from the side of the complainants, as they did not deposit the amount in time and also committed forgery and fraud by producing false and fabricated documents. It was denied that Annexure C-5 was received by the answering Opposite Parties as the same was addressed to New Delhi's Office of the answering Opposite Parties. It was further stated that the actual amount due towards the complainants till 28.4.2015 was Rs.18,82,350/- as per Annexures R-2 and R-3. It was further stated that the flat of the complainants is ready and could be delivered only if the whole amount as per Annexure R-2 is paid. It was further stated earlier demand raised was to the tune of Rs.5,58,874/- but later on, on tallying the accounts with the payment record of the complainants, the same came to be Rs.18,82,350/-. It was further stated that since the whole amount is not paid, therefore, the question of making payment of Rs.7,000/- per month from 11.12.2013 does not arise at all. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Parties No.1, 2 & 4, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
8. Opposite Party No.3 put in appearance on 29.4.2015. In its reply by way of affidavit of Sh. Rohit Gogia, its authorized signatory, Opposite Party No.3 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.3, 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 allotments 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.3. It was further stated that in the present case, Opposite Parties No.1, 2 & 4, approached Opposite Party No.3 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 to prospective buyers. It was further stated that Opposite Party No.3 was not having any interference with the development, and construction activity by Opposite Parties No.1, 2 & 4 over the aforesaid 150 plots. It was further stated that Opposite Party No.3 is not even party to the Agreement dated 10.12.2011 executed between Opposite Parties No.1, 2 & 4 and the complainants. It was further stated that the complaint was wholly misconceived against Opposite Party No.3. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.3, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
9. The complainants, in support of their case, submitted their separate affidavit, by way of evidence, alongwith which, a number of documents were attached.
10. Opposite Parties No.1, 2 and 4, in support of their case, submitted the affidavit of Sh. Ranjit Singh, their General Manager (Legal & Administration), by way of evidence, alongwith which, a number of documents were attached.
11. Opposite Party No.3, in support of its case, submitted the affidavit of Sh. Rohit Gogia, its authorized signatory, by way of evidence.
12. The complainants filed replication wherein, they reiterated all the averments, contained in the complaint and repudiated the same, contained in the written version of Opposite Parties No.1, 2 & 4.
13. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
14. It is evident from the record that the complainants were allotted Unit No.19302 (First Floor) vide allotment letter (Annexure C-1) and Buyer Agreement (Annexure C-3) was executed between the parties on 10.12.2011 at Chandigarh. The total sale consideration of the unit, in question, as per allotment letter and Buyer Agreement after discount of Rs.2,48,750/- was Rs.25,68,050/-, which included a sum of Rs.1,16,800/- on account of EDC. It is evident from Annexure C-2 that the complainants made payment in the sum of Rs.24,33,000/- during the period 16.2.2011 to 25.4.2011. The Opposite Parties No.1, 2 and 4 in their legal notice dated 29.10.2014 (Annexure C-24) admitted to have received payment of Rs.28,07,284/-.
15. The first question, which falls for consideration, is as to whether, the complainants were consumers or not? According to the Opposite Parties, the complainants, who are residing at Dehradun, purchased the flat, in question, for commercial purpose/resale. It is not the case of the Opposite Parties, that the complainants booked two flats in the project of the Opposite Parties. Had the complainants booked/purchased more than one plot, the matter would have been different. Then it could be said that they purchased the property, in question, for resale or commercial purposes. However, in the instant case, there is no such fact or document, on record, brought in evidence by the Opposite Parties wherefrom it could be proved that the flat, in question, was purchased for resale to earn profits. Further, in the absence of any cogent documentary evidence, proving that the house at Dehradun where the complainants are presently residing was owned by them, the objection of the Opposite Parties, to this effect, is hollow and the same is not sustainable in the eyes of law. The same, therefore, stands rejected.
16. The next question, which falls for consideration, is, as to whether existence of Clause 36 in the Buyers Agreement, bars the territorial jurisdiction of this Commission, to entertain and try the complaint. Section 17(2) of the Act, being relevant, is extracted hereunder:-
(2) A complaint shall be instituted in a State Commission within the limits of whose jurisdiction,--
(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain; or
(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided that in such case either the permission of the State Commission is given or the opposite parties who do not reside or carry on business or have a branch office or personally work for gain, as the case may be, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.
17. No doubt, the Counsel for Opposite Parties No.1, 2 and 4 submitted that since the parties as per Clause 36 of the Buyer Agreement (Annexure C-3), agreed that the Courts at Delhi alone, would have jurisdiction, for adjudication of all matters arising out or in connection with the same (Agreement), this Commission has got no territorial jurisdiction, to entertain and decide the complaint. The submission of the Counsel for Opposite Parties No.1, 2 and 4, in this regard, being devoid of merit, is liable to be rejected, for the reasons to be recorded hereinafter. In the first instance, it may be stated here that the Consumer Foras' are not the Courts. Clause 36 of the Buyer Agreement, Annexure C-3, only confers jurisdiction on the Courts at Delhi. Under these circumstances, no help can be drawn, from this Clause, for coming to the conclusion that this Commission at Chandigarh, has no territorial jurisdiction, to entertain and decide the instant complaint. In Associated Road Carriers Ltd. Vs. Kamlender Kashyap and Ors., I (2008) CPJ 404 (NC), it was held by the National Commission, that a clause of jurisdiction, by way of an Agreement, between the parties, could not be made applicable, to consumer complaints, filed before the Consumer Foras, as the Foras are not the Courts. It was further held, in the said case, that there is a difference between Section 11 of the Act, which a para material to Section 17 of the Act and the provisions of Sections 15 to 20 of the Civil Procedure Code, regarding the place of jurisdiction. In the instant case, the Buyer Agreement (Annexure C-1) was executed between the complainants and the Opposite Parties on 10.12.2011 at Chandigarh. Allotment Letter dated (Annexure C-1), issued to complainant No.1, was also issued by the Chandigarh Office of Opposite Parties No.1, 2 and 4. As such, a part of cause of action, accrued to the complainants, at Chandigarh. Accordingly, this Commission at Chandigarh, in view of the provisions of Section 17 of the Act, has territorial jurisdiction to entertain and decide the complaint. The submission of the Counsel for Opposite Parties No.1, 2 & 4, in this regard, therefore, being devoid of merit, fail and the same stands rejected.
18. The next question, which falls for consideration, is, as to whether this Commission can adjudicate upon the present complaint, when there are allegations of fraud and forgery leveled by the Opposite Parties, against its Director and the complainants. Bare perusal of the Buyer Agreement reveals that the Buyers Agreement on each page bears the stamp and signatures of authorized signatory of Opposite Parties No.1, 2 & 4. When the Agreement is duly signed by an authorized signatory of Opposite Parties No.1, 2 & 4, they (Opposite Parties) cannot resile from the contents of the same. It is not the case of Opposite Parties No.1, 2 & 4 that they did not receive the amount deposited by the complainants. If the person who was authorized to sign the Agreement committed some fraud with Opposite Parties No.1, 2 & 4, the liability for the same cannot be fastened upon the complainants. Opposite Parties No.1, 2 & 4 can proceed against him, as per the provisions of law but the rights of the complainants, being third parties, due to the acts of the Director of the Company, could not be affected. This was an internal affair of the Company vis-à-vis its Director who allegedly committed fraud with it (Company). Thus, this objection of Opposite Parties No.1, 2 & 4, being devoid of merit also stands rejected.
19. The next question, which falls for consideration is as to whether the complainants opted for down payment plan or construction linked payment plan. The Counsel for Opposite Parties No.1, 2 and 4 has submitted that allotment letter dated 16.2.2011 (Annexure C-1) is forged and fabricated one. This contention is apparently incorrect as would be seen from the position discussed hereinafter. The down payment plan and construction linked plans, as annexed with the Application for Expression of Interest-cum-Advance Registration Form were to the following effect:-
Down Payment Plan Payment Milestones Basis of calculation Amount in INR BSP (Basic Sales Price) 2700000 EDC 116800 PLC 0 Discount 248750 At the time of registration 20% of BSP 540000 Within three months of first installment 75% of BSP + 100% EDC + 100% PLC - Discount 1893050 On final notice of possession 5% of BSP 135000 Total Price 2568050 Construction Linked Installment Plan Payment Milestones Basis of Calculation Amount in INR BSP (Basic Sales Price) 2700000.00 EDC 116800.00 PLC 0.00 Discount 5000000 At the time of registration 20% of BSP 540000.00 Within three months of allotment 10% of BSP 270000.00 Within three months of first installment 10% of BSP 270000.00 On commencement of demarcation of plot 10% of BSP 270000.00 On casting of ground floor roof 7.5% of BSP 202500.00 On casting of first floor roof 7.5% of BSP 202500.00 On start of brick work 7.5% of BSP + 25% of EDC 231700.00 On start of internal plastering 7.5% of BSP + 25% of EDC + 50% of PLC 231700.00 On start of flooring 5% of BSP + 25% of EDC + 50% of PLC 164200.00 On start of internal electrification 5% of BSP + 25% of EDC - 50% of Discount 164200.00 On start of internal plumbing 5% of BSP - 50% of Discount 135000.00 On final notice of possession 5% of BSP 135000.00 Total Price:
2766800.00 No doubt, application form indicates as if the complainants opted for installment plan but the next part, which is extracted hereunder, does not specify the payment plan opted:
"I/We agree to undertake and pay the sale consideration in the form of requested above in down payment/installments, as indicated in Annexure-B, as and when demanded by the Company."
Most of the columns of application/registration form are blank. The perusal of allotment letter dated 16.2.2011 (Annexure C-1) indicates that complainants opted for down payment plan, and, thus, apparently, plan opted was down payment plan. A comparison of two payment plans clearly reveals that in down payment plan, complainant was required to make 75% payment within a period of 45 days of registration whereas in construction linked installment plan, payment was to be made at the time of registration, within 3 months and depending upon various stages of construction. Apparently demand was to be raised by the Opposite Parties when the construction reached a specified stage, indicated in the plan. The Opposite Parties have not adduced any evidence that demands were raised by them to this effect. In fact, there would have been no occasion for the same, when in actuality, the complainants opted for down payment plan and a sum of Rs.24,33,050/- was made within two months of expression of interest and allotment. Opposite Parties No.1, 2 and 4 have themselves admitted by placing, on record, Annexure R-2 alongwith their written statement that a sum of Rs.20,07,284/- was received by them on the following dates:-
16.02.2011 Rs.50,000.00 26.02.2011 Rs.5,00,000.00 18.03.2011 Rs.2,00,000.00 25.04.2011 Rs.8,83,050.00 15.04.2013 Rs.1,09,234.00 15.04.2013 Rs.2,65,000.00 Total Rs.20,07,284.00 Thus, as per admission of Opposite Parties themselves, payment in the sum of Rs.16,33,050/- was made within a period of about two months from the date of allotment. In Annexure R-2, the Opposite Parties did not show payment in the sum of Rs.8,00,000/- made on 21.4.2011 which is duly reflected in Annexure C-2, according to which, the complainants made payment in the sum of Rs.24,33,000/- within three months. The Opposite Parties No.1, 2 and 4 in their legal notice dated 29.10.2014 (Annexure C-24) admitted to have received payment of Rs.28,07,284/- and had informed the complainants that amount due was Rs.5,58,874/- on account of charges, transfer charges, service tax, club charges, IFMS, sewerage, electricity, water, service tax on services, delayed interest payment, inflation, additional maintenance charges etc.
20. The bifurcation as given in Annexure -A attached with the legal notice was as under:-
Principal Rs.71,372.12 Club charges Rs.50,000.00 Electrification charges Rs.30,000.00 Water Meter charges Rs.30,000.00 Sewerage charges Rs.20,000.00 Service tax on other charges Rs.9,888.00 IFMS (RWD) Rs.50,000.00 Inflation charges Rs.2,09,596.00 Holding charges Rs.86,400.00 Maintenance charges (Nov 14 to March 15) Rs.1,618.00 Total Rs.5,58,874.00 As against the demand of Rs.5,58,874/-, Opposite Parties No.1, 2 and 4 have in Annexure R-3 shown demand of Rs.18,82,350/-. A comparison of Annexures - A (at page 112) and R-3 reveals that the principal amount due has been shown to be Rs.71,372.00 and Rs.9,10,213.79 respectively and there is no valid reason and justification for such a wide variation and variation on other counts.
21. The next question would now arise, as to what are the amounts, to which, Opposite Parties No.1, 2 and 4 are legally entitled to. As per Para 3 of the legal notice, the total price of the unit was Rs.27,00,000/- plus EDC charges of Rs.1,16,800/-, discount of Rs.2,48,750/- but did not include transfer charges, service tax, club charges, IFMS, sewerage, electricity, water, service tax on services, delayed interest payment, inflation, additional maintenance charges etc.
22. Admittedly, against the total sale price of Rs.33,66,158/-, as per legal notice aforesaid, the complainants have paid a sum of Rs.28,07,284/-.
23. Insofar as inflation charges are concerned, it may be stated here that there is a specific clause relating to inflation in the Buyer Agreement. Clause 11 of the Buyer Agreement dated 10.12.2011 (Annexure C-3), being relevant is extracted hereunder:-
"11. The price for the unit stipulated herein is based on wholesale Index for all commodities as ruling in. However, during the progress of the work, escalation in cost takes place which will be based on all India wholesale index for all commodities the effect of such increase as assessed by the Company and intimated to the intending (allottees) shall be payable by him/her over and above the price. The decision of the Company in this respect shall be final and binding on the intending Allottee(s). The increased incidence may be charged and recovered by the Company from the intending allottee(s) with anyone or more of the installments or separately."
It is evident from the afore-extracted Clause 11 of the Buyer Agreement dated 10.12.2011 (Annexure C-3), that Opposite Parties No.1, 2 and 4, were entitled to escalation in cost during the course of construction work, based on All India Wholesale Index for all commodities. In terms of this Clause, the Opposite Parties, submitted a chart (Annexure R-4) at pages 173-174 i.e. Inflation Working Details for Avenue Unit. The Buyer Agreement was executed on 10.12.2011 and possession of the unit, in question, was to be delivered, as per Clause 9 of the same (Buyer Agreement), within 24 months i.e. on or before 09.12.2013. The parties were bound by the terms and conditions of the Buyer Agreement duly signed by them. Once the Buyer Agreement was executed, the terms thereof shall prevail. Under these circumstances, Opposite Parties No.1, 2 and 4 were entitled to escalation in cost of the unit, in question, if any took place, for the years from 2011-2012 and 2012-2013 i.e. 10.12.2011 to 09.12.2012 and 10.12.2012 to 09.12.2013 (latter being the promised date of delivery of possession of unit). For the years 2011-2012, the inflation charges shown in the document (Annexure R-4) at page 173 of the file are Rs.43,891.39Ps and for 2012-2013, the same have been shown as Rs.62,239.54Ps. This escalation in cost totaling Rs.1,06,130/- worked out, by Opposite Parties No.1, 2 and 4, on the basis of Wholesale Price Index of the commodities, for the years 2011-12 and 2012-13 is payable by the complainants. It is evident from account statement (Annexure R-4), at page 173 of the file that the escalation in cost was arrived at, on the basis of Wholesale Price Index of the commodities/construction material, by Opposite Parties No.1, 2 and 4, in case, the same was not correct, it was for the complainants, to rebut the same, by producing some cogent and convincing evidence, but they failed to do so. Under these circumstances, there is no reason, not to rely upon this chart (Annexure R-4), running into two pages i.e.173-174, to come to the conclusion that escalation in cost arrived at, by Opposite Parties No.1, 2 and 4, for the years 2011-2012 and 2012-2013 is correct and payable by the complainant. The formula applied by Opposite Parties No.1, 2 and 4, is also correct. Under these circumstances, the complainants are liable to pay Rs.1,06,130.93Ps (Rs.43,891.39Ps plus (+) Rs.62,239.54Ps.), on account of escalation in cost, correctly calculated by Opposite Parties No.1, 2 and 4.
24. So far as the escalation in cost, with regard to the years 2013-2014 and 2014-2015 is concerned, it may be stated here, that Opposite Parties No.1, 2 and 4, are not entitled to the same, for the reasons, to be recorded hereunder. As stated above, the Buyer Agreement Annexure C-3 was executed on 10.12.2011. As per Clause 9 of the Buyer Agreement dated 10.12.2011 Annexure C-3, the possession of unit was to be given within a period of 24 months (18 months plus 6 months grace period) from the date of execution of the same (Agreement dated 10.12.2011) i.e. on or before 9.12.2013. It was for Opposite Parties No.1, 2 and 4, to complete the construction, within 24 months. If there was any escalation in cost, during the period of 2 years, referred to above, they were certainly entitled to the same (escalation in cost), as per Clause 11 of the Buyer Agreement dated 10.12.2011 Annexure C-3. Thus, Opposite Parties No.1, 2 and 4, are held to be entitled to Rs.1,06,130.93Ps., on account of escalation in cost, for the period from 10.12.2011 to 09.12.2012 and 10.12.2012 to 09.12.2013 only. In case, Opposite Parties No.1, 2 and 4, are held entitled to escalation in cost, for the years 2013-2014 and 2014-2015 i.e. beyond 09.12.2013 onwards, then there will be no end to their illegal demands. If the builders continue delaying construction of the units/flats/premises, allotted to the consumers, for years together, then the latter could not be blamed for escalation in cost. If the builders are given liberty to delay construction of the units, beyond the promised date of delivery of possession, as per the Agreement, without the existence of any circumstances, beyond their control, then they may not adhere to the time schedule and delay the construction, for years together, making the consumers suffer at their hands. Clearly such an act would amount to indulgence into unfair trade practice. Under these circumstances, beyond the promised date of delivery of unit, Opposite Parties No.1, 2 and 4, are not entitled to escalation in cost. The submission of the Counsel for Opposite Parties No.1, 2 and 4, that Opposite Parties No.1, 2 and 4, were also entitled to escalation in cost, for the years 2013-2014 and 2014-2015, therefore, being devoid of merit, must fail, and the same stands rejected.
25. Regarding demand of Rs.50,000/- on account of club membership charges, it may be stated here, that the demand with regard to club charges is not legal and valid. There is no mention of club charges in the allotment letter (Annexure C-1) or in the Buyer Agreement (Annexure C-3). As such, the complainants could not be forced to pay club charges. The demand of club charges by Opposite Parties No.1, 2 and 4 is, therefore, not sustainable.
26. Since the Opposite Parties have not offered possession and interest on delayed payment by the complainants has been charged, they are not entitled to holding charges as per Clause 9 of the Buyer Agreement dated 10.12.2011 (Annexure C-3).
27. As regards IFMS, Taxes, levies and Stamp duty, the same are payable in terms of Clauses 4 (b) and (c) of the Buyer Agreement (Annexure C-3). The complainants, thus, undertook to pay the aforesaid charges, as is evident from the Buyer Agreement. Further vide letter dated 15.04.2013 (Annexure C-7), Opposite Parties No.1, 2 and 4 wrote to the complainants that electrification charges, water meter and connection charges, sewerage charges, IFMS, totaling Rs.1,30,000/- were pending against them.
28. In view of the above and in absence of any cogent evidence by the complainants that they paid the same, it is held that the total of other amounts, tabulated hereunder, due against the complainants, comes to Rs.3,18,559.05Ps:-
Sr. No. Description Amount (Rs.)
1.
Principal Amount 71,372.12
2. IFMS 50,000.00
3. Sewerage 20,000.00
4. Electrification charges 30,000.00
5. Water charges 30,000.00
6. Service Tax on services 9,888.00
7. Maintenance charges 1,168.00
8. Inflation charges 1,06,130.93 Total:
Rs.3,18,559.05 The aforesaid charges could be claimed, as per the terms and conditions of the Agreement and the allotment letter. Thus, only a sum of Rs.3,18,559.05Ps is payable by the complainants. The Opposite Parties have failed to prove on the basis of cogent evidence that they are entitled to a sum of Rs.18,82,350/-.
29. No doubt, the Counsel for Opposite Parties No.1, 2 and 4, also submitted that various documents, including some statements of account, placed on record, by the complainant, were issued by Mr. Sanjay Jain, their Ex-Director, who was not authorized to do so. He further submitted that it was found that he (Sanjay Jain) had embezzled huge amount of the Company and had played fraud with it and, as such, a criminal case against him and the complainant was lodged. He further submitted that no reliance, therefore, on such forged and fabricated documents, could be placed. The submission of the Counsel for Opposite Parties No.1, 2 and 4, in this regard, is bereft of merit. If there was any dispute between Opposite Parties No.1, 2 and 4 and their Director Sanjay Jain and he allegedly played fraud with the Company as also allegedly embezzled its amount, then the third parties i.e. the consumers including the complainant were not to suffer. As stated above, the consumers, while dealing with the Company, did not know as to who were the Directors thereof, and how their internal affairs were being managed. In case, Mr. Sanjay Jain, former Director of Opposite Parties No.1, 2 and 4, allegedly played fraud with them, or allegedly embezzled the amount belonging to the Company, then the consumers could not be held liable to suffer for that. Opposite Parties No.1, 2 and 4 had their legal remedy of recovery of the amount allegedly embezzled by Sanjay Jain, Ex-Director, by filing a civil suit, and also by proceeding against him under the criminal law. Thus, the documents, referred to above, could not be said to be unreliable documents. Opposite Parties No.1, 2 and 4, could not wriggle out of the documents, referred to above, as the same contained admission against their interests. Thus, the submission of the Counsel for Opposite Parties No.1, 2 and 4, in this regard, being devoid of merit, must fail, and the same stands rejected.
30. The next question which falls for consideration, is, whether, the complainants are entitled to compensation/delay charges, if so, at what rate, for non-delivery of physical possession of the unit, in question, by Opposite Parties No.1, 2 and 4, by the promised date. According to Clause 9 of the Buyer Agreement dated 10.12.2011 Annexure C-3, Opposite Parties No.1, 2 and 4, were liable to pay a sum of Rs.7,000/- per month, as compensation/delay charges, for the period of delay, beyond 24 months, from the date of execution of the same. Possession of the unit, in question, was not delivered to the complainants, by the stipulated date, or even by the time, the complaint was filed. The complainants are, thus, entitled to compensation/delay charges @ Rs.7,000/- per month, for the period of delay, per month, from 09.12.2013 (promised date of possession) onwards, on account of delay, in the delivery of possession of the unit, in question, as per Clause 9 of the Agreement, referred to above.
31. Whether, the complainant is entitled to compensation, under Section 14(1)(d) of the Act, on account of mental agony and physical harassment and injury caused to him, as also for deficiency in rendering service and indulgence into unfair trade practice, by not delivering physical possession of the unit, in question, to him, by the stipulated date on account of the partial illegal demand of the amount made by Opposite Parties No.1, 2 and 4 is the next question, that requires determination. The complainants booked the unit, in question, with the hope to have a shelter, but their hopes were dashed to the ground, when Opposite Parties No.1, 2 and 4, failed to complete the unit, in question, and deliver possession of the same. No doubt, the complainants made a default in making payment of Rs.3,18,559.05Ps, as held above, yet Opposite Parties No.1, 2 and 4 have charged interest on the delayed payments, as shown in summary dated 02.09.2014, page 112-113, which the complainants duly paid. For the default of the complainants, they have been penalized, by charging interest on the delayed payments. They, thus, cannot be doubly penalized, by disallowing them compensation under Section 14 (1) (d) of the Act. The complainants underwent mental agony and physical harassment, on account of the acts of omission and commission of the Opposite Parties. In this view of the matter, the complainants, in our considered opinion, are entitled to compensation, for deficiency in service, adoption of unfair trade practice, mental agony and physical harassment caused to them, at the hands of Opposite Parties No.1, 2 & 4, to the tune of Rs.70,000/- which could be said to be adequate and reasonable.
32. Coming to the liability of Opposite Party No.3, it may be stated here, that the Buyer Agreement dated 10.12.2011 (Annexure C-3), was executed between the complainants and Opposite Parties No.1, 2 & 4. Even the services of Opposite Party No.3, were not hired by the complainants, and, as such, the question of payment of consideration to it, never arose. Hence, the complaint against Opposite Party No.3 is liable to be dismissed.
33. For the reasons recorded above, the complaint is partly accepted, with costs, against Opposite Parties No.1, 2 & 4. They are jointly and severally held liable and directed as under:-
(i) To hand over legal physical possession of unit No.19302, complete in all respects, to the complainants, within two months, from the date of receipt of a certified copy of this order, on payment of Rs.3,18,559.05Ps, as indicated above.
(ii) To execute the sale deed and get the same registered, in respect of unit No.19302 in favour of the complainants, on payment of stamp duty and registration charges by the latter (complainants), within a period of 1 (one) month, from the date of delivery of possession.
(iii) To pay delay charges/compensation @Rs.7000/-, per month, to the complainants, from 09.12.2013 (the promised date of delivery of possession), till 31.05.2015, as per Clause 9 of the Buyer Agreement dated 10.12.2011 (Annexure C-3).
(iv) To pay compensation, in the sum of Rs.70,000/-, to the complainants on account of deficiency in rendering service, adoption of unfair trade practice by Opposite Parties No.1, 2 &4, mental agony and physical harassment, caused to them (complainants), at their hands.
(v) To pay cost of litigation, to the tune of Rs.20,000/-, to the complainants.
(vi) Compensation/delay charges, granted to the complainants, as mentioned in Clause (iii), which has fallen due up-to 31.05.2015, shall be paid by Opposite Parties No.1, 2 & 4, within 2 months, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry interest @9% P.A., from 09.12.2013, till realization.
(vii) Delay charges/compensation accruing due @ Rs.7000/- per month, w.e.f. 01.06.2015, onwards, shall be paid by the 10th of the following month, failing which, the same shall also carry interest @9 % P.A., from the date of default, till the delivery of possession.
(viii) Compensation granted, in favour of the complainants, on account of deficiency in rendering service, unfair trade practice, mental agony and physical harassment, to the tune of Rs.70,000/-, as mentioned in Clause (iv) above, shall be paid, within a period of 2 months, from the date of receipt of a certified copy of the order, failing which they (Opposite Parties No.1, 2 & 4) shall pay interest @9% P.A., on the same, from the date of filing the complaint, till realization, besides payment of litigation costs.
(ix) Demands of Rs.5,58,874/-, made vide legal notice dated 29.10.2014 Annexure C-24/Rs.18,82,350/- vide Annexure R-3 as on 28.04.2015, are partially held to be illegal, as indicated above, and, as such, are set aside to that extent.
34. Complaint against Opposite Party No.3 is dismissed with no orders as to cost.
35. Certified Copies of this order be sent to the parties, free of charge.
36. The file be consigned to Record Room, after completion.
Pronounced.
June 16, 2015.
Sd/-
[DEV RAJ] PRESIDING MEMBER Sd/-
[PADMA PANDEY] MEMBER Ad