State Consumer Disputes Redressal Commission
Rajneesh Sood vs M/S Premium Acres Infratech Pvt. Ltd. on 29 January, 2016
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH Consumer Complaint No. 221 of 2015 Date of Institution 18.09.2015 Date of Decision 29.01.2016 Rajneesh Sood S/o Mr. Narinder Sood, resident of 40 Kirin Way, Maddingcon (WA) Australia 6109, through Power of Attorney Holder Mr. Anil Khanna S/o Mr. Amrit Lal, H.No.3067, Ward No.9, Sirhind Mandi, Distt. Fatehgarh Sahib, Punjab. .....Complainant Versus M/s Premium Acres Infratech Pvt. Ltd., SCO 56-57, 3rd Floor, Sector 17-D, Chandigarh, through its Managing Director. M/s Premium Acres Infratech Pvt. Ltd., Villa No.205, TDI City Premium Acre Court Yard, Sector 110-111, S.A.S. Nagar (Mohali) through its Authorised representative. M/s Premium Acres Infratech Private Limited, (Regd. Office) 17/6, Anand Parbat, Industrial Area, Near Gali No.10, New Rohtak Road, New Delhi-110005, through its director. Parminder Singh Sehgal (Director), Premium Acres Infratech Private Limited, R/o H.No.1227, Sector 42-B, Chandigarh-160036. Second Address:- Parminder Singh Sehgal (Director), Premium Acres Infratech Private Limited, R/o H.No.61-62, Sector 70, Mohali. .....Opposite Parties BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER
MRS. PADMA PANDEY, MEMBER Argued by: Mrs. Vertika H. Singh, Advocate for the Complainant. Sh. Parminder Singh, Advocate for the Opposite Parties.
PER PADMA PANDEY, MEMBER The facts, in brief, are that the complainant vide application dated 12.2.2011, applied to the Opposite Parties, for the purchase of a flat, in their project, namely 'The Court Yard Avenue' in Mega Housing Project of TDI City in Sector 110-111, Mohali. The complainant was allotted flat No.1502, approximately of a built up area of 1200 square feet. It was stated that the complainant opted for Construction Linked Payment Plan. Subsequently, Buyer Agreement dated 16.06.2011 (Annexure C-1) was also executed between the parties and as per Clause 9 of the Agreement, possession of the flat 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 i.e. on or before 15.06.2013. It was further stated that total sale consideration of the flat was to the tune of Rs.30,86,800/- including External Development Charges (EDC) and Preferential Location Charges (PLC), as is evident from the payment plan (at page 36 of the file). It was further stated that the complainant had already made the payment of Rs.30,95,900/- i.e. more than 95% of the sale consideration and only 5% of the basic sale price i.e. Rs.1,35,000/- remains to be paid by the complainant at the time of delivery of possession. It was further stated that the demand letter dated 06.06.2014 (Annexure C-2) issued by the Opposite Parties clearly shows that the payment of Rs.30,95,000/- made by the complainant . It was averred that the complainant had made all the payments of installments due, as and when demanded by the Opposite Parties, however, the Opposite Parties charged the delayed payment interest from him.
2. It was further stated that the complainant is residing in a foreign country and the Opposite Parties were bound to provide the status of the construction work being undertaken by them, so that he could make the payment against the installment due in consonance with the construction undertaken by the Company, but they never informed regarding the status of the construction. It was further averred that the allotment letter was never supplied to the complainant. It was further stated that the complainant was assured by Mr. Amit Jain, Former Director of the Company that he should ignore all the interest portion levied on him and promised to waive off the said interest, but the Opposite Parties denied to waive off the said interest on the ground that the entire interest on delayed payment would be waived off, at the time of payment of final installment on handing over of possession of the flat to the complainant. However, after lapse of more than two years from the agreed date of handing over of possession and payment of more than 95% of the agreed sale consideration, possession of the said flat was not handed over to him. It was further stated that shockingly, vide letter dated 12.06.2015 (Annexure C-3), the Opposite Parties raised a demand of Rs.10,62,445/-. It was further stated that after paying all the amount due, the complainant showed the basic sale price of Rs.5,07,954/- due against him alongwith service tax of Rs.18,226/-. Further, the Opposite Parties showed an amount of Rs.4,30,441/- pending on account of electricity, water, sewerage, service tax, club membership fee, IFMS, inflation and maintenance charges. Over and above this, an interest amounting to Rs.1,05,824/- was shown pending against the complainant. It was further stated that the club charges and inflation charges were arbitrary levied by the Opposite Parties.
3. It was further stated, that the complainant telephonically contacted the Opposite Parties regarding the delivery of possession of the said flat, a number of times, but they did not give any satisfactory reply. It was further stated that vide Payment Default Notice dated 18.08.2015 (Annexure C-4), the Opposite Parties raised the demand from Rs.10,62,445 to Rs.10,97,550/-, after levying an extra interest of Rs.35,105/-. It was further stated that the complainant vide e-mail dated 01.09.2015 (Annexure C-5) raised his grievance with the Opposite Parties regarding the payment of Rs.10,97,550/- and asked for explanation regarding the calculation of basic sale price alongwith interest on delayed payments and the inflation charges but they did not bother. The power of attorney holder of the complainant met the officials of the Opposite Parties present at the site but they did not give any satisfactory reply regarding delay in construction work. It was further stated that after making the payment of EDC, there was no development in the sector. It was further stated the aforesaid acts of 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 (in short Act only), was filed.
4. Opposite Parties, in their reply, stated that no cause of action has accrued to the complainants in this case, as they had not paid the due installments in time and paid only the amount of Rs.30,95,900/- from 12.02.2011 to 05.05.2014. It was further stated that the complainant opted for Construction Linked Plan, so the amount was to be paid as per that plan but in this case, it is clear from Annexure R-2 that they failed to make the payment on time and, as such, an amount of Rs.7,05,799/- is still pending/due under various heads. It was averred that according to Delayed Payment Clause, interest on delayed payments and concession/discount had already been given to the complainant as per Annexure R-2, so the complainant is not entitled to any relief. It was further averred that since complicated question of facts regarding the payments made and demanded are disputed and moreover some forged and fabricated documents have been produced by the complainant, which were not issued by the office of the replying Opposite Parties, so only Civil Court has the jurisdiction to try the matter. It was further stated that since as per Clause 36 of the Agreement, in question, only the Courts at Delhi, had jurisdiction to adjudicate any dispute, arising between the parties. Therefore, no cause of action of any type whatsoever has accrued to the complainant, which shows that this Commission has the territorial jurisdiction to try this complaint. It was pleaded that the complainant is not a consumer because he is living in Australia and permanently settled over there, as such, he invested the money for earning profits.
5. According to the Opposite Parties, the Buyer Agreement dated 16.06.2011 (Annexure C-1) was not signed by a properly authorized person, but in order to maintain a cordial and good relation with the customer, replying Opposite Parties are honouring the Agreement, which is also supposed to be honoured by the complainant also in letter and spirit. It was further pleaded that as per Clause 9 of the Agreement, the replying Opposite Parties are fully protected under that clause and cannot be held liable for any kind of delay whatsoever. The construction work suffered a little bit delay because the fraud committed by the employees of the Opposite Parties Company, which is mentioned in Annexure R-4 and R-5. It was further stated that even it was the duty of the complainant to make the payment in time, as per Clause 4(e) of the Agreement. It was admitted that basic sale price of the flat including EDC and PLC came to Rs.30,86,800/-. Apart from these payments, there were other payments under various heads to be paid by the complainant, which was mentioned in the Buyer Agreement (Annexure C-1), allotment letter (Annexure R-7) and detail of which was also explained in Annexure R-2 to be read with Annexure R-3. It was further stated that the payment of Rs.30,95,900/- made by the complainant is not the 95% of the total cost of the flat and as per Annexure R-2, still an amount of Rs.7,05,799/- is pending, which is to be paid by the complainant before getting possession and if that amount is paid, then flat is ready upto 85% to 90%, in which, only fixtures etc. are to be made and the same can be handed over within 45 days from the date of complete payment pending as per Annexure R-2. It was denied that the project was delayed because of the replying Opposite Parties, whereas, the project was delayed because the complainant failed to make the payment in time. It was denied that the replying Opposite Parties are duty bound to provide the status of the construction. However, it was the duty of the complainant to check the level of construction and then make the payment.
6. It was denied regarding the alleged assurance given by the former Director of the Company that the interest would be waived off and entire delayed payments would be settled in the final installment because nobody except the M.D. (Opposite Party No.4) is allowed or authorized to waive off the amount, but that too according to the terms and conditions. It was denied regarding the pending amount due to the tune of Rs.87,684/- as shown in Annexure C-2, since the same was not issued by the authorized person. It was further stated that the delayed interest charges, IFMS charges, club chares are properly calculated and levied in Annexure R-2 as per Agreement (Annexure C-1), so the complainant is liable to make the payment as per Annexure R-2, which included the inflation, as calculated according to Annexure R-3. The wholesale price index is regularly issued by the Government at their website. Regarding the club charges, it was mentioned that the said charges are compulsory payable and club facility already being constructed and it is going to start in near future. It was further stated that the complainant never contacted the replying Opposite Parties on phone and payment default notice (Annexure C-4) dated 18.08.2015 issued by the replying Opposite Parties, which is now properly recalculated and as per Annexure R-2, the total amount comes to the tune of Rs.7,05,799/- which is due upto 31.10.2015. It was further stated that the replying Opposite Parties had not received any email, as mentioned in Annexure C-5. It was further stated that proper infrastructure development of the park and other necessary areas like roads and street light is there and that can be properly verified and checked from the photographs Annexure R-8. It was further stated that copy of allotment letter was already given to the complainant because without allotment letter subsequent Buyer Agreement and other Agreement could not be entered into between the parties. It was further stated that the replying Opposite Parties were neither deficient, in rendering service nor indulged into unfair trade practice.
7. The parties led evidence in support of their case.
8. We have heard the Counsel for the parties and have gone through the evidence and record of the case, carefully.
9. Annexure C-1 is a copy of the Buyer Agreement dated 16.06.2011, which was executed between the complainant and M/s Premium Acres Infratech Private Limited, at Chandigarh. It is an admitted fact that the complainant applied to the Company vide application dated 12.02.2011 for the allotment of unit No.1502 in the project namely 'The Court Yard Avenue' of Mega Housing Project of TDI City in Sector 110-111, Mohali, Punjab. It is evident from page No.36 of the file that the complainant opted for Construction Linked Installment Plan. A bare perusal of the payment plan opted by the complainant clearly shows that the total basic sale price was Rs.27,00,000/- ; Rs.1,16,800/- on account of External Development Charges and Preferential Location Charges shown as Rs.2,70,000/-. The total price of the unit, in question, shown as Rs.30,86,800/-. The Construction Linked Installment Plan, opted by the complainant, is extracted hereunder:-
Payment Milestones Basis of Calculation Amount in INR BSP (Basic Sales Price) 27,00,000.00 EDC 1,16,800.00 PLC 2,70,000.00 At the time of registration 20% of BSP 5,40,000.00 Within three months of allotment 10% of BSP 2,70,000.00 Within three months of first installment 10% of BSP 2,70,000.00 On commencement of demarcation of plot 10% of BSP 2,70,000.00 On casting of ground floor roof 7.5% of BSP 2,02,500.00 On casting of first floor roof 7.5% of BSP 2,02,500.00 On start of brick work 7.5% of BSP + 25% of EDC 2,31,700.00 On start of internal plastering 7.5% of BSP + 25% of EDC + 50% of PLC 3,66,700.00 On start of flooring 5% of BSP + 25% of EDC + 50% of PLC 2,99,200.00 On start of internal electrification 5% of BSP + 25% of EDC 1,64,200.00 On start of internal plumbing 5% of BSP 1,35,000.00 On final notice of possession 5% of BSP 1,35,000.00 Total Price :
30,86,800/-
10. A perusal of the aforesaid chart shows that total sale consideration of the unit was Rs.30,86,800/- and the Opposite Parties in para No.3 of their written statement admitted that the complainant paid a total sum of Rs.30,95,900/-.
11. The first question, that falls for consideration is, as to whether, the complainant falls within the definition of consumer or not? The Counsel for the Opposite Parties submitted that the complainant is living in Australia and permanently settled over there and he invested the money for earning profits and, therefore, he cannot be termed as a consumer. On the other hand, Counsel for the complainant submitted that the complainant had bought the said flat for his own residential purposes, as he is planning to come back and settle down in his home country. He further submitted that the complainant has no residential property in his name in India. It is, no doubt, true that the unit, purchased by the complainant, is a residential one and not the commercial property. No evidence was produced by the Opposite Parties that the complainant bought the said unit for resale purpose and not residential one. Even, no evidence was produced by the Opposite Parties that the complainant is a property dealer, who deals in the sale and purchase of the property, and, as such, he purchased the unit, in question, for the purpose of investment, with a view to resell the same, as and when, there is escalation, in the prices of real estate. Under these circumstances, it is held that the complainant availed of the services of the Opposite Parties, for consideration, for the purpose of allotment of the unit, in question, and therefore, he fell within the definition of a consumer. The submission of the Counsel for the Opposite Parties, therefore, being without merit must fail and the same stands rejected.
12. The next question, that falls for consideration, is, as to whether, this Commission has got territorial Jurisdiction to entertain and decide the consumer complaint, or not. The submission of Counsel for the Opposite Parties, that since the parties, as per Clause 36 of the Buyer Agreement, agreed that the Courts at Delhi alone would have Jurisdiction, for adjudication of all disputes arising out or in connection with the same (Agreement), this Commission has got no territorial Jurisdiction, to entertain and decide the complaint, 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 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 Hon'ble National Consumer Disputes Redressal Commission, that a clause of Jurisdiction, by way of an Agreement, between the parties, could not be made applicable, to the 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 is para materia to Section 17 of the Act and the provisions of Sections 15 to 20 of the Civil Procedure Code, regarding the place of Jurisdiction. Otherwise also, in the instant case, the Buyer Agreement, was executed between the complainant and the Opposite Parties, at Chandigarh, as is evident from Annexure C-1 of the file. Not only this, payment plan and payment due details vide letter dated 06.06.2014 (Annexure C-2) issued to the complainant by the Opposite Parties, from their Chandigarh office. Even the complainant alleged in his complaint that the Opposite Parties failed to issue any allotment letter to him. On the other hand, the Opposite Parties stated that allotment letter (Annexure R-7) was issued to the complainant. If, we agree that the allotment letter was issued to the complainant, the same was issued only from their Chandigarh office i.e. SCO No.56-57, 3rd Floor, Sector 17-D, Chandigarh, as is evident from bottom of the allotment letter (Annexure R-7). As such, a part of cause of action, accrued to the complainant, 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 Counsel for the Opposite Parties, in this regard, therefore, being devoid of merit, must fail and the same stands rejected.
13. 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 earlier employee of the Company i.e. Mr.Sanjay Jain in connivance with the other officials (Annexure R-4 and R-5). Bare perusal of the Buyer Agreement reveals that the said Agreement on each page bears the stamp and signatures of authorized signatory of the Company. When the Agreement is duly signed by an authorized signatory of the Opposite Parties, they cannot resile from the contents of the same. It is not the case of the Opposite Parties that they did not receive the amount deposited by the complainant. If the person who was authorized to sign the Agreement committed some fraud with the Opposite Parties, the liability for the same cannot be fastened upon the complainant. The Opposite Parties can proceed against him/them, as per the provisions of law but the rights of the complainant, being third parties, due to the acts of the earlier employee/employees of the Company, could not be affected. This was an internal affair of the Company vis-à-vis its Director /Authorised Signatory, in connivance with the other officials, who allegedly committed fraud with it (Company). Thus, this objection of the Opposite Parties, being devoid of merit also stands rejected.
14. The next question, that falls for consideration, is, as to what amount is required to be paid by the complainant, towards remaining sale consideration and other charges, in respect of the said unit. As per the summary, Annexure R-2, at page 96 of the file, produced by the Opposite Parties, a sum of Rs.7,05,799/-, was demanded from the complainant, under various heads, as under:-
S.No Heads Amount to be paid (Rs.) Amount rcvd. and Adjusted Amount (Rs.)
1.
Basic sale 27,00,000/-
25,17,108/-
1,82,892/-
2. Preferred Location Charges 2,70,000/-
2,70,000/-
3. External Development Charges 1,16,800/-
58,400/-
58,400/-
4. Service Tax + Building Cess 1,21,784/-
1,15,709/-
6,075/-
5. Less :-Discount
-
-
-
6. Club charges 50,000/-
50,000/-
7. IFMS 50,000/-
50,000/-
8. Sewerage 20,000/-
20,000/-
9. Electricity 30,000/-
30,000/-
10. Water 30,000/-
30,000/-
11. Service tax on services 11,200/-
11,200/-
12. Delayed Interest Payment 1,62,674/-
1,34,683/-
27,991/-
13. Inflations 2,32,674/-
-
2,32,674/-
14. Restoration Charges
-
-
-
15. Add: Maintenance charges (from the date of possession) (192 Sqt. Yards x 2.50 x 12) + Service Tax @14% 6,567/-
6,567/-
16. Total Product Cost 38,01,699/-
30,95,900/-
17. LESS :-
Payment Already Received Rs.30,95,900/-
Rs.30,95,900/-
Balance Amount Receivable 7,05,799/-
-
7,05,799/-
15. The question, that falls for consideration, is, as to whether, out of the aforesaid amounts, the inflation charges, to the tune of Rs.2,32,674/-, claimed by the Opposite Parties, vide summary (Annexure R-2), are legal or not. It may be stated here that Clause 11 of the Buyer Agreement, reads as under:-
"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 Allottees(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".
16. It is evident, from afore-extracted Clause 11 of the Buyer Agreement, that the Opposite Parties, were entitled to escalation in cost, during the course of construction work, based on All India Wholesale Index for all commodities. Based on this Clause, the Opposite Parties, submitted Annexure R-3 at page 103 i.e. Inflation Working Detail for Avenue Unit. The Buyer Agreement was executed on 16.06.2011 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 15.06.2013. The parties were bound by the terms and conditions of the Agreement, duly signed by them. Under these circumstances, the Opposite Parties, were entitled to escalation in cost of the unit, in question, if any, for the years from 2011-2012 and 2012-2013. For the years 2011-2012, the inflation charges shown, in the document Annexure R-3 are Rs.43,891.39Ps and for 2012-2013, the same have been shown as Rs.62239.54Ps. This escalation in cost was worked out, by the Opposite Parties, on the basis of Wholesale Price Index of the commodities, for these years. No cogent and reliable evidence was produced by the complainant, to rebut the calculation of inflation charges made by the Opposite Parties, for the years 2011-2013 and 2012-2013. Under these circumstances, the complainant is liable to pay Rs.1,06,130.93Ps. say Rs.1,06,131/- (Rs.43891.39Ps. plus (+) Rs.62239.54Ps), on account of escalation in cost, instead of Rs.2,32,674/-, as calculated by the Opposite Parties.
17. So far as the escalation in cost, with regard to the remaining years is concerned, the Opposite Parties, are not entitled to the same. In case, for the years aforesaid the Opposite Parties, are also held entitled to escalation in cost, then there will be no end to their nefarious activities. If the unscrupulous builders continue delaying construction of the units/flats/villas, allotted to the consumers, for years together, then the latter cannot be penalized for the same. If the builders are given liberty to continue construction of the units, beyond the promised date of delivery of possession, as per the Agreement, without existence of any circumstances, beyond their control, then they may delay the construction, for years together, and the consumers will suffer at their hands, on account of making payment of escalation in cost. It would thus amount to indulgence into unfair trade practice. The submission of the Opposite Parties in this regard, being devoid of merit, must fail, and the same stands rejected.
18. As far as the levying of delayed interest payment of Rs.27,991/-, after adjusting Rs.1,34,683/- (i.e. total Rs.1,62,674/-) is concerned, it may be stated here that the complainant is bound by the terms and conditions of the Agreement. So, we are of the view that the Opposite Parties are entitled to Rs.27,991/- as rightly calculated by them in the summary (Annexure R-2).
19. Now the question arises, as to what amount is required to be paid by the complainant, to the Opposite Parties. It is an admitted fact that out of the total product cost of Rs.38,01,699/-, a per Annexure R-2, the complainant had paid an amount of Rs.30,95,900/-. According to the Opposite Parties, the complainant is required to pay an amount of Rs.7,05,799/-. After going through Annexure R-2, we are of the view that the complainant is required to pay the following amounts :-
S.No Heads Amount (Rs.)
1.
Basic Sale Price 1,82,892/-
2. External Development Charges 58,400/-
3. Service Tax + Building Cess 6075/-
4. Club charges 50,000/-
5. IFMS 50,000/-
6. Sewerage 20,000/-
7. Electricity 30,000/-
8. Water 30,000/-
9. Service tax on services 11,200/-
10. Delayed Payment Interest 27,991/-
11. Inflations (only for the years 2011-12 and 2012-13).
1,06,130.93/-
12. Add: Maintenance charges (from the date of possession) (192 Sqt. Yards x 2.50 x 12) + Service Tax @14% 6567/-
To be paid Rs.5,79,256/-
Thus, as per the calculations made in the table above, the Opposite Parties, are legally entitled to only Rs.5,79,256/-, out of the demanded amount of Rs.7,05,799/- raised by them from the complainant vide Annexure R-2, under various heads, as discussed hereinbefore.
20. The next question, which falls for consideration, is, as to whether there was any deficiency attributable to the Opposite Parties in handing over possession of the unit, in question, to the complainant. Clause 9 of the Buyer Agreement (Annexure C-1), being relevant is extracted hereunder:-
"9. That the possession of the said premises is likely to be delivered by the company to the floor 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 floor Allottee who shall within 30 days thereof, remit all dues and take possession of the floor. 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.7,000/- per month as delay charges for the period of delay."
21. The Buyer Agreement was executed between the parties on 16.06.2011 and computing 24 months period therefrom, the Opposite Parties were required to hand over possession by 15.06.2013. Though the Opposite Parties vide their letter dated 12.06.2015 (Annexure C-3) raised the demand of Rs.10,62,445/- from the complainant and, thereafter, the complainant received another mail dated 31.08.2015 alongwith payment default notice dated 18.08.2015 (Annexure C-4) and now had raised the demand from Rs.10,62,445/- to Rs.10,97,550/- after levying an extra interest of Rs.35,105/-. In the said payment default notice (Annexure C-4), it was stated by the Opposite Parties that unit is complete for possession and only finishing touches like removable fittings are pending which was to be installed only after clearance of all the legal dues. Even the complainant sent an email dated 01.09.2015 (Annexure C-5) to the Opposite Parties , whereby, he raised the grievance regarding payment of Rs.10,97,550/- and requested that he was ready to make payment, subject to the condition that the Opposite Parties should supply the complainant explanation for the same and reconcile the accounts but the Opposite Parties never bothered to reply to the said email. In their reply, the Opposite Parties stated that they have not received any email (Annexure C-5) and moreover, Annexure C-5 could not have been replied because by that time the present complaint has already been filed by the complainant. However, the Opposite Parties failed to adduce any evidence regarding non-receiving of the said email (Annexure C-5) from the complainant. Even though, the complainant is residing in a foreign country, the power of attorney holder of the complainant, in order to get the possession of flat at the earliest visited the site several times and shocked to see that no construction activity was undergoing at the site. Even the said person met the officials of the Opposite Parties at the site but none of the officials gave any satisfactory reply for the delay in construction work. Moreover, the complainant alleged that he had not received any allotment letter from the Opposite Parties, till date. On the other hand, the Opposite Parties placed on record allotment letter (Annexure R-7) and stated in their written statement that the same was sent to the complainant. A bare perusal of the allotment letter (Annexure R-7) clearly shows that no officials/officer of the Company signed the said allotment letter. The Opposite Parties failed to adduce any evidence, which could prove that under which mode, he sent the said allotment letter to the complainant. Even the Opposite Parties did not offer possession of the unit till date. Therefore, the Opposite Parties failed to offer possession within the stipulated period, for which they were liable to pay penalty. So, the Opposite Parties are liable to pay penalty at the rate of Rs.7,000/- per month, in accordance with the provisions of Clause 9 of the Buyer Agreement (Annexure C-1) from 15.06. 2013 till handing over the actual physical possession of the unit, in question.
22. 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. The complainant booked the unit, with the hope to have a shelter over their head, but his hopes were dashed to the ground, when the Company, did not deliver possession of the same, despite the fact that he had opted the Construction Linked Payment Plan and had already made the payment of huge amount Rs.30,95,900/-. Despite receipt of the huge amount, the Opposite Parties failed to hand over possession of the unit to the complainant. It is relevant to mention that the Opposite Parties received huge amount from the complainant and used his hard earned money almost for four years from the date of execution of Agreement. The complainant, thus, underwent a tremendous 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 complainant, in our considered opinion, is entitled to compensation, for mental agony and physical harassment caused to him, at the hands of the Opposite Parties, to the tune of Rs.1,50,000/-, which could be said to be adequate and reasonable.
23. No other point, was urged by the Counsel for the Parties.
24. For the reasons recorded above, the complaint is partly accepted with costs, against the Opposite Parties, in the following manner:-
(i) The letter dated 12.06.2015 (Annexure C-3) and Payment Default Notice dated 18.08.2015 (Annexure C-4) issued by the Opposite Parties being illegal, null and void, are set aside.
(ii) The Opposite Parties 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 after receiving an amount of Rs.5,79,256/- from the complainant, as set out in para No.19 above.
(iii) The Opposite Parties 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 (ii), 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.
(iv) The Opposite Parties jointly and severally shall pay compensation @Rs.7,000/- per month for delay in delivery of possession from 15.06.2013 uptil 31.01.2016 within two months from the date of receipt of a certified copy of the order.
(v) The Opposite Parties jointly and severally shall pay compensation @Rs.7,000/- per month for delay in delivering possession beyond 01.02.2016 by the 10th of succeeding month till actual handing over of physical possession.
(vi) The Opposite Parties are further jointly and severally, directed to pay compensation, in the sum of Rs.1,50,000/- 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.
(vii) The Opposite Parties are further jointly and severally, directed to pay cost of litigation, to the tune of Rs.50,000/-, to the complainant.
(viii) In case the order is not complied within the stipulated period, as indicated above, then the Opposite Parties shall be jointly and severally liable to pay amount mentioned in Clause (iv) alongwith interest @9% per annum from the date of default, till payment and the amount mentioned in Clause (v) from the date of default till the delivery of possession and the amount mentioned in Clause (vi) with interest @9% per annum from the date of default till realization, besides payment of costs, to the tune of Rs.50,000/-.
25. Certified Copies of this order be sent to the parties, free of charge.
26. The file be consigned to Record Room, after completion.
Pronounced.
29.01.2016 Sd/-
[JUSTICE JASBIR SINGH (RETD.)] PRESIDENT Sd/-
[DEV RAJ] MEMBER Sd/-
[PADMA PANDEY] MEMBER rb