National Consumer Disputes Redressal
M/S. Svp Builders (I) Ltd. vs Manoj Srivastava & Anr. on 11 September, 2019
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3272 OF 2018 (Against the Order dated 31/10/2018 in Appeal No. 818/2014 of the State Commission Uttar Pradesh) 1. MANOJ KUMAR SRIVASTAVA & ANR. S/O SH. SINGHASAN PRASAD R/O TOWER-12A, FLAT NO. 5C, GULMOHAR GREENS, 95 KATORI MILL, MOHANNAGAR, GHAZIABAD U.P 2. SADHNA SRIVASTAVA . ...........Petitioner(s) Versus 1. M/S. S.V. P. BUILDERS PVT. LTD. KIRAN ENCLAVE NEAR SAMRAT HOTEL G.T. ROAD GHAZIABAD U.P ...........Respondent(s) REVISION PETITION NO. 249 OF 2019 (Against the Order dated 31/10/2018 in Appeal No. 818/2014 of the State Commission Uttar Pradesh) 1. M/S. SVP BUILDERS (I) LTD. THROUGH ITS AR/DIRECTORS, A-3, 2ND FLOOR, SOUTH EXTN. PART I, NEW DELHI-110069 ...........Petitioner(s) Versus 1. MANOJ SRIVASTAVA & ANR. S/O. SINGHASAN PRASAD, R/O. TOWER 12A, FLAT NO. 5, GULMOHAR GREENS, 95 KATORI MILL, MOHAN NAGAR, GHAZIABAD UTTAR PRADESH 2. SMT. SADHNA SRIVASTAVA W/O. MANOJ SRIVASTAVA, R/O. TOWER 12A, FLAT NO. 5, GULMOHAR GREENS, 95 KATORI MILL, MOHAN NAGAR, GHAZIABAD UTTAR PRADESH ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT HON'BLE MRS. M. SHREESHA,MEMBER
For the Petitioner : IN RP/3272/2018
For the Petitioners : Mr. Manoj Kumar Srivastava, In person
IN RP/249/2019
For the Petitioner : Mr. Prabhash Kr. Jha, Advocate For the Respondent : IN RP/3272/2018
For the Respondent : Mr. Prabhash Kr. Jha, Advocate
IN RP/249/2019
For the Respondents : Mr. Manoj Kumar Srivastava, In person
Dated : 11 Sep 2019 ORDER
PER HON'BLE M. SHREESHA, MEMBER
Challenge in these Revision Petitions under Section 21 (b) of the Consumer Protection Act (in short "the Act") is to the order dated 31.10.2018, passed by the Uttar Pradesh State Consumer Disputes Redressal Commission, Lucknow (in short "the State Commission") in Appeal Nos. 818 and 702 of 2014 preferred by M/s S.V.P. Builders (I) Ltd. (hereinafter referred to as "the Developer") and the Complainants respectively. By the impugned order, the State Commission has partially allowed the Appeal preferred by the Complainants directing the Developer to pay a sum of ₹5,36,095/- with interest @ 6% p.a. from 19.12.2012 till the date of realization together with compensation and costs of ₹16,000/-. The Appeal preferred by the Developer was dismissed.
2. The facts in brief are that the first Complainant, retired from the Indian Air Force booked a flat in 'Gulmohar Greens' a projected floated by the Developer for a total consideration at ₹40,65,000/- and was allotted a flat No. T-12, A-5C, admeasuring 1600 sq. ft. on 12.11.2008. It was stated that the Complainants were to pay 95% of the total sale consideration by April, 2009 and thereafter pay the stamp duty, EDC and other governmental charges at the time of handing over of the possession. Likewise, the Complainants paid 95% of the total sale consideration by 30.04.2009. On 17.07.2009, an Allotment Agreement was entered into and the Developer had assured the Complainants to hand over the possession of flat by December 2010, failing which a penalty of ₹5 sq. ft. per month would be paid till the date of handing over of the possession. It is averred that the Developer thereafter increased the cost to ₹43,50,000/- and the possession of the subject flat was handed over to the Complainants on 16.01.2013. A no due certificate was issued on 24.12.2012. It is averred that when the Complainants inspected the allotted flat after taking the possession, they found that several amenities were not completed and area in square feet was also much less then what was assured.
3. It is pleaded that the Developer initially assured to hand over the possession at last by June 2010, after signing of the Allotment Agreement extended the date to December 2010 but finally handed over the possession in January, 2013 after 30 months delay, on account of which the Complainants suffered a monetary loss of ₹6,00,000/- as they had planned to let out their house in Noida for ₹20,000/- per month. A discounted rate @ ₹100 per sq. ft. was also promised, which was never given. Even the penalty amount of ₹5 per sq. ft. was never paid and hence the Complainant approached the District Forum seeking the following reliefs:
"1. That the Opposite Party be directed to pay Rs.3,00,000/- to the Complainants as penalty along with 24% interest for 30 months delay in handing over the possession of the flat.
2. That the Opposite Party be directed to pay Rs.6,00,000/- to the Complainants towards financial loss for not being able to let out their on rent due to 30 months delay in handing over the possession by the opposite party.
3. That the Opposite Parties be directed to pay Rs.2,85,000/- to the Complainants along with 24% interest which was collected illegally by the Opposite Party from the Complainants.
4. That the Opposite Parties be directed to pay compensation of Rs.2,00,000/- to the Complainants towards mental and physical agony suffered by them along with interest @ 24% per annum.
5. that the Opposite Party be directed to pay Rs.1,60,000/- to the Complainant towards discount of Rs.100/- per sq. ft. along with interest.
6. That the opposite parties be directed to correctly measure the flat and on the bases of correct measurement final cost of the flat be calculated and the possession of the garage be handed over to the
Complainants.
7. That this Hon'ble Court may also pass such other reliefs as deem fit."
4. The Developer filed their Written Version stating that the total sale consideration was ₹40,65,000/- after giving discount. Additionally, EDC, interest free maintenance security, electricity meter charges and other governmental expenses were to be paid by the Complainants. The Complainants were also required to pay the club membership charges, car parking charges and service tax which totally amounted to ₹44,05,095/-, out of which the Complainants were supposed to pay 95% by April, 2009. The Complainants were allotted the subject flat vide allotment letter dated 12.11.2008. It is averred that the Complainants did not pay the 95% of the total sale consideration by April, 2009 and therefore the project was delayed. It is stated that the Complainants paid the total cost only by 19.12.2012 and therefore, they were not entitled to possession prior to that date.
5. It is denied by the Developer that an amount of ₹2,85,000/- was received illegally by them. The possession was handed over on 16.01.2013 after issuing the No Due Certificate. It is averred that at the time of taking the possession the Complainants never objected to any deficiencies. Car parking facility was also made available for the Complainants at the time of handing over of possession and the Complainants were given flat of 1600 sq mtr., which is a super area and had the Complainants paid 95% of the total cost by first week of April, 2009. They could have availed the benefit of extra discount of ₹100 per sq. mtr. But as they did not pay the said amount the benefit was not passed on to the Complainants.
6. Based on the evidence adduced, the District Forum allowed the Complaint directing the Developer to refund ₹2,85,000/- received excess from the Complainants together with penalty amount at ₹5 per sq. ft. per month from 01.01.2011 to 16.01.2013 together with costs of ₹6,000/- and default interest @ 6% p.a.
7. Aggrieved by the said order, both the parties preferred Appeal before the State Commission.
8. The State Commission, while allowing the Appeal preferred by the Complainants in part has observed as follows:
"Considering the facts in length, this bench is of the opinion that the complainant has not received the possession of the flat till decided time. For that the complainant is entitled for damages of Rs.1,96,000/- @ Rs.5/- per sq. ft. per month. For period 01.11.2011 to 15.01.2013 i.e. for 2 years 15 days. In addition the complainant is also entitled to recover the additional extra amount charges by him.
Total payable amount:
Price of Flat (Basic Price)Rs. 36,80,000/-
Car ParkingRs.1,50,000/-
Power Back UpRs.45,000/-
Maintenance Security AmountRs.80,000/-
Club MembershipRs.30,000/-
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According to the account available in the record, the OP has charged Rs.44,05,095/-, which is excess of Rs.3,40,095/- and the Complainant is entitled for refund of the same along with interest. Accordingly, the total of Basic Cost of the flat and the amount towards payment as damages due to delay handing over the possession Rs.3,40,095/- + 1,96,000 = 5,36,095/- is the liability of the opposite party towards the complainant. In addition to that the complainant is also entitled for interest @ 6% per annum on the extra amount of Rs.3,40,095/- charged beyond the basic cost of the flat for the period 19.12.2012 till the date of final payment. Accordingly, the appeal no. 702/2014 of the complainant/ appellant is partially admissible and being no merit in appeal no. 818/2014 of the appellant/ op, the same is liable to be dismissed."
9. Dissatisfied by the order of the State Commission, both the Complainant and the Developer preferred Revision Petition Nos. 3272 of 2018 and 249 of 2019 respectively.
10. Learned Counsel appearing for the Developer, vehemently, contended that the State Commission did not take into consideration that the Complainants had specifically admitted in their Rejoinder that they were to pay EDC, maintenance, security, electricity meter installation charges and other government charges in addition to ₹40,65,000/- and that the Developer had already paid the EDC to the concerned department and the same was payable by the Complainants proportionately. Learned Counsel contended that it was only after paying the club membership charges , car parking charges and the service tax that the demand was made on the Complainants to pay ₹44,05,095/-. It was only because the Complainants deposited ₹37,32,000/- by April 2009 and not 95% of the amount as agreed upon, the discount of ₹100 per sq. ft. could not be passed on to the Complainants. He also argued that at the time of taking of the possession no complaints were made by the Complainants and all other issues were raised belatedly after taking possession. He submitted that there is no delay in handing over of possession as the total amount was paid only in December, 2012 and the possession was handed over in January, 2013.
11. The first Complainant appeared in person and submitted that the penalty amount for delayed possession is meagre and he seeks additional compensation of ₹5,00,000/- for mental agony and financial loss suffered by him. He contended that ₹5 per sq. ft. can be considered only if the delay is for a short period of time but that in the instant case, it is more than two years.
12. A brief point that falls for consideration is whether there is any delay in delivery of possession and if the payments were made in time by the Complainants and if the parties are entitled to the reliefs claimed.
12. It is seen from the record that as per Uttar Pradesh Apartment (Promotion of Construction, Ownership and Maintenance) Act, 2010 possession cannot be given without Completion Certificate. The facts not in dispute are not being repeated for the sake of brevity. As per the Registration Form dated 12.10.2008, the particulars of the amount to be paid is detailed as hereunder:
PARTICULARS
DETAILS
AMOUNT(Rs.)
A.
Basic Sale Price (BSP)
@ Rs. 2400 per sq. ft.
38,40,000/-
B.
Additional charges
Preferential Location Charges (if any)
(ii) Car Parking
Surface Parking Rs. ----
Covered Parking Rs. One
1,50,000/-
(iii) Power back-up Installation Charges
@ Rs. 15000 per KVA
45,000/-
(iv) Interest Free Maintenance Security (IFMS)
@ Rs. 50 per sq. ft.
80,000/-
(v) Club Membership Charges
Rs. 30,000
30,000/-
(vi) ECC
@ Rs. 50 per sq. ft.
80,000/-
(vii) Others (if any)
Rs.__________
Total Amount payable (A+B)
Rs.40,25,000/-
The aforenoted Registration Form evidences that the total amount payable is ₹40,25,000/- only, which is exclusive of car parking, power back-up installation charges, interest free maintenance security, membership charges, ECC and other charges if any. There is also a noting with respect to additional discount of ₹100 per sq. ft. and that the amount ought to be paid by April, 2009.
13. As per the Allotment Agreement the rate per sq. ft. was ₹2300/- and for a 1600 sq. ft. flat on the 5th floor the total amount was 1600 x 2300= ₹36,80,000/-, excluding aforenoted charges. Thereafter, it is an admitted fact that the Developer made an additional demand, the brake up of which is detailed as hereunder:
Flat Area
Basic Sale Price
Per Sq. Ft.
Amount
Total Amount
1600 sq. ft.
2600/-
2600/-
41,60,000/-
Covered Car Parking
-
-
1,50,000/-
Club Membership
-
-
30,000/-
E.E.C.
-
50/-
80,000/-
Power Backup
-
15,000/- per kilo watt 45,000/-
A.M.C.
-
50/-
80,000/-
Total Amount
-
45,45,000/-
Addition Concession/ Discount 100/-
1,60,000/-
Total
-
-
40,65,000/-
40,55,000/-
E.D.C. 150/-
2,40,000/-
Meter Charge
-
-
-
25,000/-
I.F.M.S.
-
-
-
20,000/-
Service Tax
-
-
-
55,095/-
Total Amount 44,05,095/-
14. It is also submitted by the party in person that it was only after three years on 18.10.2016 that the Developer got the firefighting equipment installed and at the time of taking possession there was no car parking demarcated and there was no firefighting equipment also and the registration was not done as the Complainants had filed this case. It is submitted that the stamp duty on 16.01.2013 is much lower than what it is today and therefore the Complainant should be compensated.
15. On a pertinent query from the Bench, Learned counsel appearing for the Developer submitted that he is not aware of the exact date on which the completion certificate was given and that delay, if any, was only on account of a slump in the real estate market and the nonpayment of timely installments.
16. Keeping in view the rates mentioned in the Allotment Letter, we are of the considered view that the total sale consideration was ₹40,25,000/- excluding aforementioned charges and for the Complainants to get the rebate of ₹100 per sq. ft., the documents establish that they ought to pay 95% of the amount of ₹36,80,000/- (Basic Sale Price) mentioned in the Registration Form, which totals to ₹34,96,000/-. It is seen from the record that the Complainants paid the said amount till 30.04.2009 and the balance was to be paid at the time of handing over of possession. It is seen from para 11 of the Written Version that the promised date of delivery was December, 2010.
17. The Hon'ble Supreme Court in a catena of judgements has laid down that in the absence of Completion Certificate the possession cannot be considered to be a legal possession, hence we do not seen any illegality or infirmity in the concurrent finding of both the fora below observing that there was deficiency of service on behalf of the Developer in belatedly handing over the possession of the subject flat and also in collecting excess amount of ₹2,85,000/-. The State Commission has arrived at ₹3,40,095/- as excess amount in addition to ₹1,96,000/- payable towards penalty. We find force in the contention of the party in person that ₹5 per sq. ft. per month cannot be considered to be equitable penalty, when the delay is for a longer period of time. The Hon'ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, II (2009) CPJ 34 (SC), has stated that such clauses in the Agreement are one sided as ₹5 per sq. ft. per month amounts to 2.18%, whereas if there is any delay in the Complainants making payments to the Developer, the interest charged is 24% as per Clause 2 (c) of the Agreement.
18. Keeping in view this disparity, we are of the considered view that terms are unequitable and fall within the definition of Unfair Trade Practice as defined under Section 2 (r) of the Act.
19. For all the aforenoted reasons, we are of the considered view that the Revision Petition No. 249 of 2019 preferred by the Developer be dismissed and the Revision Petition No. 3272 of 2018 preferred by the Complainant be allowed partly and the order of the State Commission is modified, enhancing the compensation to an additional amount of ₹2,00,000/- for the financial/ rental loss incurred by the Complainants for the delay in delivery of possession by two years.
20. Time for compliance four weeks from the date of receipt of a copy of this order, failing which, the amount shall attract interest @ 9% p.a. from the date of filing of the Complaint till the date of realisation.
......................J R.K. AGRAWAL PRESIDENT ...................... M. SHREESHA MEMBER