State Consumer Disputes Redressal Commission
Vikas Setia vs Ansal Properties & Infrastructure Ltd. on 5 May, 2021
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL COMMISSION
JUDGMENT RESERVED ON: 17.03.2021
JUDGMENT PRONOUNCED ON: 05.05.2021
COMPLAINT NO. 706/2018
IN THE MATTER OF
VIKAS SETIA ..... COMPLAINANT
VERSUS
ANSAL PROPERTIES & INFRASTRUCTURE LTD.
......OPPOSITE PARTY
CORAM:
HON'BLE DR. JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
HON'BLE SH. ANIL SRIVASTAVA, (MEMBER)
Present: Complainant in person
Mr. Tanuj Sharma, Counsel for Opposite Party.
PER: HON'BLE DR. JUSTICE SANGITA DHINGRA SEHGAL,
PRESIDENT
JUDGMENT
[Via Video Conferencing]
1. Brief facts necessary for the adjudication of the present complaint are that on 11.08.2007, the Complainant booked a plot with the Opposite Party and paid a sum of Rs. 1,57,000/- as the booking amount.
C-706/2018 Page 1 of 122. The Opposite Party allotted plot bearing No. C-2118, admeasuring 250 sq. mtr. in Opposite party's project namely "Sushant City", located at Kurukshetra, Haryana. The basic sale price as agreed between the parties was Rs. 6,279/- per Sq. Mtr. along with an additional cost of Rs. 37,375/- as Preferential Location Charges and Rs. 2,84,050 as External Development Charges. The total sale consideration amounts to Rs.18,91,175/-.
3. Thereafter, the Plot Buying Agreement was executed between the parties on 03.09.2007 which consists of the payment plan as opted by the complainant to meet its liability towards the Opposite Party. For ready reference the payment plan has been reproduced as follows:
DEVELOPMENT LINKED PAYMENT PLAN INSTALLMENTS % OF BASIC AMOUNT DUE SALE PRICE DUE With application of 10% of BSP Rs. 1,60,712.50/- Allotment Within 2 months of 10% of BSP Rs. 1,60,712.50/- Allotment Within 4 months of 10% of BSP Rs. 1,60,712.50/- Allotment Within 6 months of 10% of BSP Rs. 1,60,712.50/- Allotment On laying of road in front 10% of BSP Rs. 1,60,712.50/- of the plot On laying of storm water 10% of BSP Rs. 1,60,712.50/- drain in front of plot.
On laying Sewer Line in 10% of BSP Rs. 1,60,712.50/-C-706/2018 Page 2 of 12
front of plot On laying Water Line in 10% of BSP Rs. 1,60,712.50/- front of plot On laying Electric Cable 10% of BSP Rs. 1,60,712.50/- in front of plot At the time of Possession. 10% of BSP Rs. 1,60,712.50/-
TOTAL AMOUNT DUE Rs. 16,07,125/-
4. The Complainant was also liable to pay Rs. 2,84,050 as External Development Charges as per the following schedule:-
Installments % of Charges Amount Due
Payable
Within 8 months of Booking 20% Rs. 56,810/-
Within 8 months of Booking 20% Rs. 56,810/-
Within 8 months of Booking 20% Rs. 56,810/-
Within 8 months of Booking 20% Rs. 56,810/-
Within 8 months of Booking 20% Rs. 56,810/-
TOTAL AMOUNT DUE Rs. 2,84,050/-
5. The Complainant made timely payments to the Opposite Party as and when demanded by them, however, the complainant received a demand letter dated 19.08.2008 for an amount of Rs. 2,17,523/-
(Being the 5th BSP Installment along with External Development Charge installment).
6. Vide letter dated, 25.08.2008, the complainant inquired regarding demand letter as the amount could only be due on progress being made at the project site as per the construction linked payment plan.
C-706/2018 Page 3 of 12However, on a recent visit to the project, the Complainant noticed that there was no progress in construction.
7. The Opposite Party then issued a fresh demand of 3rd Installment of External Development Charges as payable which was paid by the complainant on 24.11.2008.
8. Subsequently, the complainant paid the entire amount due on External Development Charges to the Opposite Party as on 12.09.2009 as per the Cheques bearing numbers 712913 dated 17.07.2008, 712915 dated 14.11.2008, 718619 dated 14.01.2009 and 712924 dated 12.09.2009.
9. Thereafter, even after making payments towards the External Development Charges the Opposite party manipulated the statement of account in such a way that the payment made towards the External Development Charges was adjusted against the Basic Sale Price which was not even due. The Opposite Party then charged high interest rates due to non-payment of the External Development Charges installment even when the Complainant had already cleared all dues pertaining to the same.
10. The Complainant then received a letter dated 10.08.2011 wherein the opposite Party raised a demand of Rs. 3,68,660/- and threatened the complainant regarding cancellation of booking if the payment is not made within 30 days of the call notice. Aggrieved by the threat of cancellation, the Complainant made the aforesaid payment under protest to the opposite Party.
11. The Complainant made a payment of Rs. 17,30,462/- as on 28.08.2011 which were due on the complainant before the offer of possession was made and only 10% was payable at the time of offer of possession.
12. Payment to the extent of Rs 17,30,462.50/- made by the Complainant to the Opposite party is evident from the perusal of the receipts C-706/2018 Page 4 of 12 attached with the complaint reflecting the payments made by the complainant in the following manner:-
Receipt Date Amount Paid Description
Number
470099 16.08.2007 Rs. 1,57,000/- Towards BSP
1068 21.11.2007 Rs. 1,64,975/- Towards BSP
2562 15.12.2007 Rs. 1,60,713/- Towards BSP
11864 14.02.2008 Rs. 1,60,713/- Towards BSP
27147 06.06.2008 Rs. 1,60,713/- Towards BSP
36060 12.08.2008 Rs. 1,13,620/- Towards External
Development Charges
47141 24.11.2008 Rs. 56,810/- Towards External
Development Charges
53463 24.01.2009 Rs. 1,03,353.50/- Rs. 56,810/- towards
External Development
Charges
Rs. 46,543/- towards
BSP
59875 27.03.2009 Rs. 1,13,477/- Towards BSP
74838 18.09.2009 Rs. 56,810/- Towards External
Development Charges
131727 16.04.2011 Rs. 1,13,477/- Rs. 66,385.50 - towards
External Development
Charges
Rs. 47,091.50 - towards
BSP
28.08.2011 Rs. 3,68,657/-
C-706/2018 Page 5 of 12
Total Amount Paid Rs 17, 30, 462.50/-
(28.08.2011)
13. The complainant repeatedly asked the Opposite Party to provide the statement of account to the complainant in order to asses the adjustment of the amount paid by the complainant. However the Opposite party did not provide the details of adjustment of the amount paid by the complainant.
14. Subsequently, on 28.04.2015, the Opposite Party offered possession to the complainant and attached a final statement of account which required the complainant to pay a further sum of Rs. 2,12,158.46 as towards basic sale Price and Rs. 5,24,601/- towards interest charged on delayed payment made and other charges pertaining to Registration charges.
15. Aggrieved by the aforesaid, the Complainant got served a legal notice dated 18.05.2015 upon the Opposite party requiring them to provide the statement of account to assess the adjustments made by the Opposite party of the amount paid by the complainant.
16. Hence, left with no other option, even after approaching the Opposite Party through all possible means, the Complainant filed the consumer complaint before the District Forum. Vide order dated 06.03.2018, the complaint was returned from the District Forum on want of pecuniary jurisdiction and was instituted before this commission.
17. The Opposite Party, despite service, failed to appear before the District Forum and hence was proceeded Ex-Parte vide order dated 01.03.2016. The Complainant filed their Ex -Parte evidence and the arguments on behalf of the Complainant were heard.
C-706/2018 Page 6 of 1218. It is the case of the Complainant that despite making the timely payments for the allotted plot in the Opposite Party's project, the Opposite Party charged excess amount towards the External Development Charges and caused inordinate delay in handing over the possession of the plot.
19. We have heard the counsel for the Complainant and perused through the material on record.
EXCESS EXTERNAL DEVELOPMENT CHARGES
20. The first question which comes up for consideration is whether the Opposite party was right in charging an amount of Rs. 66 , 385 . 50/- over and above the External Developmental Charges as stipulated in the Allotment Letter which was duly paid by the Complainant.
21. On perusal of the receipts attached herewith, the Complainant made payments as and when due to the Opposite Party, even so the Opposite Party kept on charging interest and demanded excess amount than the amount as payable under the head External Development Charges.
22. We deem it appropriate to refer to the dicta of the Hon'ble National Commission in Himanshu Aneja v. Ansal Properties & Infrastructure Ltd. reported at 2015 SCC OnLine NCDRC 535, wherein it has been held as follows:-
"8. On careful consideration of the submissions made on behalf of the parties and the material on record, we find merit in the contention of the petitioner. On careful reading of Clause-2 of the agreement between the parties reproduced above, it is clear that as per this clause if any external and/or peripheral services are provided by HUDA or any local authority for which any charges are levied the same shall be payable by the purchaser in addition to the price of the flat on pro-rata basis. On perusal of the copy of the agreement between the parties particularly the Schedule-II to the agreement we find that this schedule provides for the time bound C-706/2018 Page 7 of 12 manner in which the external development charges were required to be paid by the complainant. Undisputedly, the external development charges in terms of the above schedule have already been paid by the complainant. This means that while entering into agreement with the complainant the opposite party was aware of EDC charges and he had received the payment of the complainant's share of EDC charges in terms of Schedule-II of the agreement. There is no evidence on record that after entering into agreement with the complainant the opposite party received any demand either from HUDA or any local authority for EDC or any other charges levied in respect of some external or peripheral services. Therefore, the opposite party had no right to raise further demand in violation of the terms and conditions of agreement. If the opposite party for any reason has delayed the payment of EDC charges for which he is required to pay interest, he cannot shift the liability on the complainant who as per the terms of agreement has paid the external development charges in accordance with the payment schedule annexed to the agreement."
23. Returning to the facts of the present, the Opposite Party Vide letter dated 08.04.2011 apprised the complainant regarding the amount due on External Development Charges. However, perusal of the receipts reflect that the Complainant had cleared all dues with respect to the External Development Charges as on 18.09.2009.
24. The receipts attached with the complaint as issued by the Opposite Party reflect that the Opposite Party has in fact charged an excess amount of Rs. 66 , 385.50 towards External Development Charges without taking into account that the External Development Charges have been duly paid by the Complainant on 18.09.2009.
25. The Opposite has abused its dominant position and repeatedly harassed the complainant with demand letters and charging enormously huge amount of interest even when the complainant C-706/2018 Page 8 of 12 fulfilled its liability with respect to the External Development Charges amount.
DEFICIENCY OF SERVICE
26. The next issue to be adjudicated is whether the Opposite Party is actually deficient in providing its services to the Complainant. The expression Deficiency of Service has been dealt with by the Hon'ble Apex Court in Arifur Rahman Khan and Ors. vs. DLF Southern Homes Pvt. Ltd. and Ors. reported at (2020) 16 SCC 512, wherein it has been held as follows:
"28. A failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractually stipulated period amounts to a deficiency. There is a fault, shortcoming or inadequacy in the nature and manner of performance which has been undertaken to be performed in pursuance of the contract in relation to the service. The expression 'service' in Section 2(1) (o) means a service of any description which is made available to potential users including the provision of facilities in connection with (among other things) housing construction. Under Section 14(1)(e), the jurisdiction of the consumer forum extends to directing the opposite party inter alia to remove the deficiency in the service in question. Intrinsic to the jurisdiction which has been conferred to direct the removal of a deficiency in service is the provision of compensation as a measure of restitution to a flat buyer for the delay which has been occasioned by the developer beyond the period within which possession was to be handed over to the purchaser. Flat purchasers suffer agony and harassment, as a result of the default of the developer. Flat purchasers make legitimate assessments in regard to the future course of their lives based on the flat which has been purchased being available for use and occupation. These legitimate expectations are belied when the developer as in the present case is guilty of a delay of years in the fulfilment of a contractual obligation."C-706/2018 Page 9 of 12
27. Returning to the facts of the present case, we deem it appropriate to refer to Clause 12 of the Allotment letter, which reads as follows:
"12. The Company shall endeavor to give the possession of the unit to the intending allottee(s) within committed period subject to force majeure circumstances and on receipt of all payments as per installment plan from the date of booking 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/her."
28. Clause 12 of the Allotment letter stipulates no specific time as to the delivery of possession. It is settled law that the complainant cannot be expected to wait for an indefinite time period to get the benefits of the hard earned money which they have spent in order to purchase the property in question. (Ref: Fortune Infrastructure v. Trevor D'Lima reported at (2018) 5 SCC 442).
29. Perusal of the record reflects that the Complainant booked the plot on 11.08.2007 and the Possession was only offered by the Opposite Party on 28.04.2015. The Opposite party failed to handover the possession of the flat within a reasonable time period and thus the Opposite Party is deficient in providing its services to the Complainant.
30. Having discussed the liability of the Opposite Party, the only question left to adjudicate is as to how the Complainant is to be compensated for the deficient acts of the Opposite Party. It is imperative to refer to the recent pronouncement of the Hon'ble Supreme Court in terms of "Interest" which is being allowed on the refunded amount. In Arifur Rahman Khan and Ors. (supra) which is the latest pronouncement (24.08.2020) on the cause, the Hon'ble Apex Court has allowed an interest @ 6% p.a. on the amount received by the Opposite Party, payable within one month and in case of default to pay within the C-706/2018 Page 10 of 12 stipulated period, an interest @ 9% p.a. was payable on the said amount.
CONCLUSION
31. The Opposite Party is directed to adjust Rs 17, 30, 462.50/- towards the total sale consideration of the booked plot. Thereafter, subject to the payment of the balance sale consideration amount of Rs. 1, 60, 710.50/- along with the Registration and Stamp duty charges of Rs. 91,500/- and Interest Free Security Deposit of Rs. 20,000/-, the Opposite Party shall get the Conveyance deed executed in favour of the Complainant.
32. Keeping in view the facts of the present case and the extensive law as discussed above, we direct the opposite party to compensate the complainant on the delay caused by the opposite party in handing over possession on the amount paid by the complainant i.e. Rs 17, 30 , 462 . 50/- along with interest as per the following arrangement: -
A. An interest @ 6% p.a. calculated from the date on which each installment/payment was received by the Opposite Party till 28.04.2015 (when the possession was actually offered);
B. The rate of interest payable as per the aforesaid clause (A) is subject to the condition that the OP pays the entire amount on or before 30.06.2021;
C. Being guided by the principles as discussed above, in case the Opposite Party fails to pay the compensation as per the aforesaid clause (A) on or before 30.06.2021, the compensation shall be calculated at an interest @ 9% p.a. calculated from 11.08.2007 till the actual realization of the amount.
C-706/2018 Page 11 of 1233. In addition to the aforesaid and taking into consideration the facts of the present case, the Opposite Party is also directed to pay the complainant a sum of:-
A. Rs. 1,00,000/- as cost for mental agony and harassment to the complainants.
B. Rs. 50,000/- as the cost of litigation.
34. Applications pending, if any, stands disposed of in terms of the aforesaid judgment.
35. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
36. File be consigned to record room along with a copy of this Judgment.
(DR. JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (ANIL SRIVASTAVA) MEMBER Pronounced On: 05.05.2021 C-706/2018 Page 12 of 12