State Consumer Disputes Redressal Commission
Naresh Kumar vs Premium Acres Infratech Pvt. Ltd, on 28 January, 2016
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Consumer Complaint No. : 269 of 2015 Date of Institution : 12.11.2015 Date of Decision : 28.01.2016 Naresh Kumar son of Sh.Megh Raj, resident of House No.200, Aapo Aap Street, Nabha-147201, Punjab. .....Complainant Versus Premium Acres Infratech Pvt. Ltd., (Earlier at SCO No.56-57, 3rd Floor, Sector 17-D, Chandigarh), Now at SCO No.139-141, First Floor, Sector 17-C, Opposite Mehfil Restaurant, Chandigarh, through its Managing Director Mr. Parminder Singh Sehgal. Premium Acres Infratech Pvt. Ltd., Registered Office, 17/6, Industrial Area, Gali No.10, Anand Prabat New Rohtak Road, New Delhi, through its Managing Director/Authorized Signatory. .... Opposite Parties Complaint under Section 17 of the Consumer Protection Act, 1986. BEFORE: JUSTICE JASBIR SINGH(RETD.), PRESIDENT. MR. DEV RAJ, MEMBER
MRS. PADMA PANDEY, MEMBER Argued by: Sh.Savinder Singh Gill, Advocate for the complainant.
Sh.Parminder Singh, Advocate for the opposite parties.
PER DEV RAJ, MEMBER The facts, in brief, are that the complainant, with a view to own a residential unit, for residential purpose, applied to the opposite parties, for allotment of a built-up floor, in their project namely 'The Court Yard' in Mega Housing Project of TDI City, in Sector 110, Mohali, Punjab, vide application dated 18.05.2011. As per the complainant, the total amount of Rs.8,70,000/- on different dates, for the period from 18.05.2011 to 09.11.2011, towards booking of the said unit, was paid by him, to the opposite parties. Subsequently, the complainant was allotted unit No.15102, (in short the unit), measuring 1440 square feet, in the said project.
Thereafter, Buyer's Agreement dated 09.11.2011, Annexure C-1 (in short the Agreement), was executed between the parties, in respect of the unit, in question. Total sale consideration of the unit, in question, was fixed at Rs.35,09,800/- i.e. Rs.29,00,000/- towards Basic Sale Price plus (+) External Development Charges (EDC) to the tune of Rs.1,16,800/-, and Preferential Location Charges (PLC), to the tune of Rs.4,93,000/-, as is also evident from the payment plan, at page 19 of the file, forming part of the Agreement.
As per Clause 9 of the Agreement, possession of the unit, in question, was to be delivered by the opposite parties, within a period of 24 months (18 months plus 6 months grace period) from the date of execution of the same (Agreement dated 09.11.2011) i.e. on or before 08.11.2013, failing which they were liable to pay Rs.7,000/- per month, as penalty/ compensation, for the period of delay.
It was further stated that the complainant made timely payments, towards price of the unit, in question, as and when demanded by the opposite parties. As such, apart from Rs.8,70,000/-, referred to above, the complainant made further payment of Rs.29,36,271/-, for the period from February 2012 to April 2014. In this manner, the total amount of Rs.38,06,271/- against Rs.35,09,800/- had been paid by the complainant, but possession of the unit, was not offered to him, what to speak of delivery thereof.
It was further stated that despite making payment of Rs.38,06,271/- against Rs.35,09,800/- i.e. Rs.2,96,471/-, in excess of the sale consideration of unit, the opposite parties vide letter dated 27.12.2014 Annexure C-4, made another demand of Rs.5,15,440/-, under various heads like IFMS, electrification charges, water connection charges etc., towards the said unit. In the said letter, it was also mentioned that possession of the unit, in question, would be handed over within 158-180 days, from the date of making the payment, meaning thereby that construction was not complete at the site, by December 2014, whereas, on the other hand, as per Agreement, possession of the unit, was to be delivered or on before 08.11.2013. It was further stated that the complainant challenged the letter dated 27.12.2014, by serving legal notice dated 09.04.2015 Annexure C-5, upon the opposite parties, but to no avail.
It was further stated that physical possession of the unit, in question, was actually required to be delivered by the opposite parties, on or before 08.11.2013, as per Clause 9 of the Buyer's Agreement, but they failed to do so, as a result whereof, the hopes of the complainant to live therein alongwith his family, were dashed to ground.
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, seeking directions to the opposite parties to deliver possession of the unit, in question, or in the alternative, refund the amount deposited alongwith interest @18% p.a., from the respective dates of deposits, till realization; pay compensation to the tune of Rs.5 lacs, for mental agony and physical harassment; penalty @Rs.7000/- per month, for the period of delay, from 08.11.2013 till delivery of possession; rental amount to the tune of Rs.12,000/- per month, paid by him to the landlord, till delivery of possession; litigation expenses, to the tune of Rs.1 lac and also to withdraw the demands made after 28.05.2014.
The opposite parties, in their joint written version, pleaded that since, as per Clause 36 of the Agreement, only the Courts at Delhi, or at the most, the State Commission/District Forum Mohali, Punjab, had Jurisdiction to adjudicate any dispute, arising between the parties, in respect of the unit, in question, as such, this Commission, at Chandigarh, has got no territorial Jurisdiction, to entertain and decide the instant complaint. It was further pleaded that since numerous documents placed on record, including some account statements, have not been issued by the opposite parties, and on the other hand, were fabricated and forged by their Officers/Employees, meaning thereby complicated and complex questions were involved in the present case, this Commission, in summary proceedings, could not adjudicate the same and, as such, the complainant was required to be relegated to the Civil Court. Purchase of the unit, in question, by the complainant was not disputed. It was also not disputed that against the total sale consideration of Rs.35,09,800/-, as mentioned in the payment plan, the complainant had paid an amount of Rs.38,06,271/- towards the said unit. It was further stated that, no doubt, as per the payment plan, the total sale consideration of the unit, in question, was mentioned as Rs.35,09,800/-, yet, apart from that, the complainant was also required to pay various charges, in respect of the unit, in question, which included inflation charges, club membership charges, services tax on services, IFMS, sewerage, electricity water etc. etc., which were rightly and legally demanded by the opposite parties. It was stated that though the Agreement was signed by one Mr.Sanjay Jain, who was not authorized to do so, yet, for the sake of maintaining good relations with the customer(s), the opposite parties honoured the terms and conditions thereof. It was stated that, no doubt, possession of the unit, in question was to be delivered within 24 months, from the date of execution of the Agreement dated 09.11.2011, yet the complainant could not claim the same, as he breached the terms and conditions of the same (Buyer's Agreement), by not making timely payments, in respect of the same (unit). It was further stated that there was stay on the mining of sand, in the area, by the Punjab and Haryana High Court, and, as such, there was some delay in construction of the unit. It was further stated that almost 95% construction work of the unit was complete, and the same had been stopped, as the complainant failed to make further payments in respect of the same, and, in case, the complainant makes the outstanding amount of Rs.7,41,112/- as depicted in Annexure R-2, possession of the same (unit) would be handed over within a period of 60 days, from the date of making the said payment. It was further stated that the opposite parties had already given possession of the units, to a number of similarly located allottees, in the said project. It was further stated that fault lays on the part of the complainant, as he failed to pay the remaining amount, in respect of the unit, in question, demand whereof was made from him. It was further stated that neither there was any deficiency, in rendering service, on the part of the opposite parties, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
In the rejoinder, filed by the complainant, he reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of the opposite parties.
The complainant, in support of the averments contained, in the complaint, submitted his affidavit, by way of evidence, alongwith which, a number of documents were attached.
The opposite parties, in support their case, submitted the affidavit of Sh. Ranjit Singh, their General Manager (Legal and Administration), by way of evidence, alongwith which, a number of documents were attached.
We have heard Counsel for the parties, and have gone through the evidence and record of the case, carefully.
The first 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's Agreement, agreed that only the Courts at Delhi, or at the most, the State Commission/District Forum Mohali, Punjab, 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 for determining the territorial jurisdiction, to entertain and decide the complaint, the Consumer Foras are bound by the provisions of Section 11 of the Act. 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 the consumer complaints, filed before the Consumer Foras. 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 Agreement, was executed between the parties, at Chandigarh, as is evident from page 9 of the file. Furthermore, letter dated 04.07.2014 at page 25 of the file and statement of account at page 29 of the file, were issued in the name of the complainant, by the opposite parties, from their Chandigarh Office i.e. SCO No.56-57, 3rd Floor, Sector 17-D, Chandigarh. 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.
Now coming to the question, regarding construction of unit(s) by the opposite parties, in the said project, it may be stated here that it is an admitted fact that the same was not completed by the stipulated date i.e. 08.11.2013. This fact is further evident, from letter dated 27.12.2014 Annexure C-4, a demand letter, wherein the opposite parties also gave an assurance that possession of the unit, would be handed over by 30.06.2015. Thus, it is clear that by 30.06.2015, construction was not complete and, as such, the opposite parties were not in a position to deliver possession of the unit, to the complainant, by the said date. No doubt, for this delay of about two years, the opposite parties have taken a shelter under the document Annexure R-6, and by stating that it had occurred, on account of ban on mining of sand, by the Hon'ble High Court. This averment is without any cogent evidence. Perusal of Annexure R-6 reveals that, it is an order dated 25.05.2010, passed by Civil Judge (Jr.Divn.), Mohali, in a case titled as Baldev Singh Vs. Taneja Developers, relating to some other issue, which has no relation, with the stand taken by the opposite parties, with regard to delay in construction of the units, and this order was passed much before execution of the Buyer's Agreement dated 09.11.2011. As such, the stand taken by the opposite parties, in this regard, to justify the delay, in construction of unit, being devoid of merit, is rejected.
The next question, that falls for consideration, is, as to whether, the ground taken by the opposite parties, to the effect that 95% of the construction work of the unit is complete and the remaining 5% was stopped, only on account of the reason that the complainant failed to pay the remaining amount towards various heads like IFMS charges, inflation charges, club membership charges, water connection charges, electrification charges etc. etc. demanded by them, could be said to be a valid ground or not. It may be stated here that, admittedly, by February 2014, against the total price of the unit i.e. Rs.35,09,800/- including EDC and PLC, the complainant had paid an amount of Rs.38,06,271/-. Thus, it cannot be disputed that the complainant had already paid excess amount of Rs.2,96,471/-, over and above the entire sale consideration of the unit, by February 2014. As far as the demands raised by the opposite parties, with regard to miscellaneous charges, under the heads, referred to above, is concerned, it may be stated here that since the opposite parties had already received Rs.38,06,271/- against the sale consideration of the unit i.e. Rs.35,09,800/-, it was required to adjust the excess amount received, under various heads, and make demand of remaining charges, when construction of the unit is complete and offer is made, in that regard, but they did not do so, and allegedly stopped construction of the unit. Not only this, even this much has not been proved by the opposite parties, that construction of the unit, is complete upto 95% by the date of filing the written reply or till date. Even if it is assumed for the sake of arguments that by 27.12.2014, when the demand letter Annexure C-4, was sent by the opposite parties, to the complainant, wherein, it was also mentioned that 95% of construction work is complete, then also it has not been clarified by them, as to why they needed 150-180 days, more to deliver possession of the unit, from 27.12.2014. It is very pertinent to mention here that there is nothing, on the record, to prove that even 95% construction work of the unit, is complete, at this stage. Had the construction of unit, in question, and amenities promised, been complete upto 95% even, at the site, then certainly the opposite parties, being in possession of the best evidence, having engaged a number of engineers/architects, would have placed on record, their reports, to prove that factum, but they failed to do so. Thus, it is held that construction of the unit, in question, was not complete at the site, as a result whereof, possession of the same, was not offered and delivered to the complainant, by the stipulated date, or even by the time, the complaint was filed, as it was not ready, despite the fact that substantial amount of Rs.38,06,271/- had been received by the opposite parties, from him. By making a misleading statement, that possession of the unit, in question, will be delivered within 24 months, from the date of execution of the Agreement and by not abiding the commitment made, the opposite parties were not only deficient, in rendering service, but also indulged into unfair trade practice, on this count.
The next question, that falls for consideration, is, as to what amount is required to be paid by the complainant, towards remaining sale consideration, if any, and other charges, in respect of the said unit, As stated above, the basic sale price of the unit, was Rs.35,09,800/- i.e. Rs.29,00,000/- towards Basic Sale Price plus (+) External Development Charges (EDC) to the tune of Rs.1,16,800/-, and Preferential Location Charges (PLC), to the tune of Rs.4,93,000/-. It is also an admitted that against Rs.35,09,800/-, the complainant have paid an amount of Rs.38,06,271/- i.e. Rs.2,96,471/-, in excess, to the opposite parties. As per the summary dated 15.12.2015, Annexure R-2, at page 65 of the file, produced by the opposite parties, a sum of Rs.7,41,112/-, 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 price 29,00,000/-
28,27,534/ 72,466/-
2. PLC 4,93,000/-
4,93,000/-
-
3. EDC 1,16,800/-
1,16,800/-
-
4. Service Tax + Building Cess 1,49,165/-
1,49,165/-
-
5. Club charges 50,000/-
-
50,000/-
6. IFMS 50,000/-
-
50,000/-
7. Sewerage 20,000/-
-
20,000/-
8. Electricity 30,000/-
-
30,000/-
9. Water 30,000/-
-
30,000/-
10. Service tax on services 11,600/-
-
11,600/-
11. Delayed payment Interest 3,37,549/-
2,19,773/-
1,17,776/-
12. Inflations 2,32,674/-
-
2,32,674/-
13. Holding charges 1,20,000/-
-
1,20,000/-
14. Add. Maintenance charges 6,595/-
-
6,595/-
Total 4547383.00 3806271.00 741112.00 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/-; holding charges to the tune of Rs.1,20,000/-; and delayed payment interest, to the tune of Rs.3,37,549/-, claimed by the opposite parties, vide summary dated 15.12.2015, Annexure R-2, are legal or not. First coming to the inflation charges, it may be stated here that Clause 11 of the Buyer's 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".
It is evident, from afore-extracted Clause 11 of the Buyer's 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. Basing on this Clause, the opposite parties, submitted Annexure R-3 at page 72 i.e. Inflation Working Details for Avenue Unit, duly supported by the affidavit of Mr. Ranjit Singh, their General Manager. The Buyer's Agreement was executed on 09.11.2011 and possession of the unit, in question, was to be delivered, as per Clause 9 of the same (Buyer's Agreement), within 24 months i.e. on or before 08.11.2013. The parties were bound by the terms and conditions of the Buyer's Agreement, duly signed by them. Under these circumstances, the opposite parties, 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. from 09.11.2011 to 08.11.2012 and 09.11.2012 to 08.11.2013 (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-3 (colly.) are Rs.43,891.39Ps. and for 2012-2013, the same have been shown as Rs.62,239.54Ps. 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 2011-2012 and 2012-2013. Under these circumstances, the complainant is 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 the opposite parties.
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 the opposite parties, are not entitled to the same, for the reasons, to be recorded hereinafter. It was for the opposite parties, to complete the construction, within 24 months, from the date of Buyer's Agreement i.e. by 08.11.2013. If there was any escalation in cost, during the period of 2 years, referred to above, the opposite parties were certainly entitled to the same, as per Clause 11 of the Buyer's Agreement. Thus, the opposite parties, are held entitled to Rs.1,06,130.93Ps. towards inflation charges, explained in the manner, referred to above. On the other hand, in case, the opposite parties, are also held entitled to escalation in cost, for the years 2013-2014 and 2014-2015 i.e. beyond 08.11.2013 onwards, then there will be no end to their nefarious activities. If the unscrupulous builders continue delaying construction of the units/flats/units, allotted to the consumers, for years together, then the latter cannot be blamed 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 that they 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.
Now coming to the delayed payment interest, levied by the opposite parties, to the tune of Rs.2,32,674/-, it may be stated here that the parties are bound by the terms and conditions of the Buyer's Agreement. The calculation of interest on delayed payments, were made by the opposite parties, from the books of account maintained by them, in the ordinary course of their business. Annexure R-2 (colly.) calculation chart is duly corroborated through the affidavit of Mr. Ranjit Singh, General Manager of the opposite parties. No contrary documentary evidence was produced by the complainant, to prove that interest to the tune of Rs.2,32,674/- charged as per Clause 4 (f) of the Agreement and reflected in Annexure R-2, is incorrect. In a similar case, titled as Haryana State Agricultural Marketing Board and Another Vs. Rajpal, III (2011) CPJ 20 (SC)=IV (2011) SLT 519=(2011) 13 SCC 504, the Hon'ble Supreme Court of India held that the allottees are liable to pay instalments and interest thereon and could not postpone payment of instalments mainly on the ground that some of the amenities were not ready. The principle of law laid down, in the aforesaid case, is fully applicable to the present case. In these circumstances, the submission of Counsel for the complainant that interest charged by the opposite parties on delayed payment, was illegal and arbitrary, being devoid of merit, must fail, and the same stands rejected.
As regards holding charges, to the tune of Rs.1,20,000/-, levied by the opposite parties, it may be stated here, that since it has been held by this Commission, that they have failed to prove that construction of the unit is complete, by the date of filing the complaint or even till date, despite the fact that the entire sale consideration has been received by them, except some charges, the question of levying the same, (holding charges), did not at all arise. As such, it could safely be said that the holding charges, levied by the opposite parties, are illegal and the complainant is not liable to pay the same.
Now the stage is set to hold, as to what amount, is required to be paid by the complainant, to the opposite parties, before possession of the unit, is delivered to him. Admittedly, the opposite parties, have received an amount of Rs.38,06,271/- from the complainant, in respect of the unit, in question, against Rs.35,09,800/-, as is evident from the statement of account, at page 29 of the file, in the following manner:-
BSP 2900000 EDC 116800 PLC 493000 Water 30000 Electricity 30000 Sewerage 20000 IFMS 50000 Taxes (3.09% S.Tax & 1% Building Cess 136464 Interest 76983 Waived off 46976 Paid 3806271 Remaining 0 It may be stated here that the said statement of account could very well be said to be an authentic document, as the same bears the stamp and signatures of an authorized signatory of the opposite parties. The said signatures are also found on the letter dated 28.05.2014 Annexure C-3. Nothing contrary has been produced, to prove the same, to be unauthentic. It is evident from the statement of account aforesaid, that the complainant had already paid an amount of Rs.38,06,271/- towards basic sale price, EDC, PLC, water, electricity, sewerage, IFMS, taxes and part delayed interest. In view of the statement of account aforesaid, it is held that the opposite parties, have wrongly shown in Annexure R-2, that the complainant is still liable to pay Rs.72,466/- towards remaining basic sale price of the unit; Rs.50,000/- towards club charges plus (+) Rs.50,000/- towards IFMS plus (+) Rs.20,000/- towards Sewerage charges plus (+) Rs.30,000/- towards Electricity charges plus (+) Rs.30,000/- towards water (+) Rs.2,32,674/- towards inflation and Rs.1,20,000/- towards holding charges.
Thus, in view of the above, only the demand of Rs.11,600/- towards Service Tax on services Rs.1,17,776/- towards remaining delayed payment interest plus (+) Rs.1,06,130.93Ps. (as calculated above, instead of Rs.2,32,674/-) towards inflation charges plus (+) Rs.6,595/- towards additional maintenance charges i.e. total Rs.2,42,101.93Ps., is legal and valid, as per the Agreement. These calculations were made by the opposite parties, from the books of account maintained by them, in the ordinary course of their business. Annexure R-2 (colly.) calculation chart is duly corroborated through the affidavit of Mr. Ranjit Singh, General Manager of the opposite parties. No contrary documentary evidence was produced by the complainant, to prove that the charges to the tune of Rs.2,42,101.93Ps., are incorrect. Thus, out of the demand of Rs.7,41,112/- raised by the opposite parties vide Annexure R-2 (colly.) only the demand of Rs.2,42,101.93Ps., in all, under various heads, as discussed hereinbefore, is legal.
It was also submitted by Counsel for the opposite parties, that various documents, including the Agreement and statement of accounts, referred to above, placed on record, by the complainant, were issued by an unauthorized person of the opposite parties. This submission is devoid of truth, as receipt of Rs.38,06,271/- shown in the statement of account in question, is admitted by the opposite parties, in Annexure R-2. It is also admitted by the opposite parties, in their written statement that they (opposite parties) are honouring the Agreement, in letter and spirit. The Counsel further submitted that because of fraud committed by the employees of the Company with it, a criminal case against them was lodged and the construction work suffered. It may be stated here, that if there was any dispute between the opposite parties and their employees, and they (employees) allegedly may have played fraud with the Company, then the third parties i.e. the consumers including the complainant were not to suffer. The consumers, while dealing with the Company, did not know as to how internal affairs of the Company were being managed, and the consumer(s)/complainant could not be allowed to suffer for that. The opposite parties had their legal remedy, by initiating proceeding against their employees, under the criminal law. Thus, the submission of Counsel for the opposite parties, that the complaint be relegated to the Civil Court, being devoid of merit, must fail, and the same stands rejected.
Whether, the complainant is entitled to compensation, if so, at what rate, for non-delivery of physical possession of the unit, in question, by the opposite parties, by the promised date, is the next question, that requires determination. According to Clause 9 of the Buyer's Agreement, the opposite parties, were liable to pay a sum of Rs.7,000/- per month, as compensation/penalty, 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 complainant, by the stipulated date, or even by the time, the complaint was filed. As stated above, since the parties are bound by the terms and conditions of the Agreement/contract executed/entered into between them, and the delayed payment interest levied by the opposite parties, has also been held to be legal, as such, keeping in view the same, it is held that the complainant is, thus, entitled to compensation/penalty @ Rs.7,000/- per month, for the period of delay, from 08.11.2013 (promised date) onwards, as per Clause 9 of the Agreement, referred to above, on account of delay, in delivery of possession of the unit, in question.
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, is the next question, that requires determination. The complainant booked the residential unit, in question, with the hope to have a shelter over his head, but his hopes were dashed to the ground, when the opposite parties, failed to complete the construction and deliver possession of the same, despite the fact that substantial amount was paid by him. Till date, physical possession of the unit, in question, has not been delivered to the complainant, by the opposite parties. 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 lacs, which could be said to be adequate and reasonable.
For the reasons recorded above, the complaint is partly accepted, with costs. The opposite parties are jointly and severally directed as under:-
To hand over legal physical possession of the unit, in question, complete in all respects, to the complainant, within three months, from the date of receipt of a certified copy of this order, on payment of Rs.2,42,101.93Ps., as indicated above, by him (complainant).
To execute the sale deed and get the same registered, in respect of the unit, in question, in favour of the complainant, on payment of stamp duty and registration charges by the latter (complainant), within a period of 1 (one) month, from the date of delivery of possession.
To pay penalty/compensation@ Rs.7000/-per month, to the complainant, from 08.11.2013 onwards (the promised date of delivery of possession), till 31.01.2016 as per Clause 9 of the Agreement, alongwith simple interest @12% P.A. To pay compensation, in the sum of Rs.1.50 lacs, to the complainant, for mental agony and physical harassment, caused to him.
To pay cost of litigation, to the tune of Rs.50,000/-, to the complainant.
Compensation, granted to the complainant, alongwith simple interest @12% P.A., as mentioned in Clause (iii), which has fallen due upto 31.01.2016, shall be paid by the opposite parties, within 2 months, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry penal interest @15% P.A., instead of 12% P.A., from 08.11.2013, till realization.
Compensation accruing due @ Rs.7,000/-per month, w.e.f. 01.02.2016, onwards, shall be paid by the 10th of the following month, failing which, the same shall also carry simple interest @ 12% P.A., from the date of default, for the entire period of delay, till the payment is made.
Compensation granted, in favour of the complainant, on account of mental agony and physical harassment caused to them, to the tune of Rs.1.50 lacs, as mentioned in Clause (iv) above and litigation costs to the tune of Rs.50,000/- as mentioned in Clause (v) 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) shall pay simple interest @12% P.A., on the same, from the date of filing the complaint, till realization.
All other demands raised by the opposite parties, being null and void, are set aside.
Certified Copies of this order be sent to the parties, free of charge.
The file be consigned to Record Room, after completion.
Pronounced.
28.01.2016 Sd/-
[JUSTICE JASBIR SINGH (RETD.)] PRESIDENT Sd/-
[DEV RAJ] MEMBER Sd/-
[PADMA PANDEY] MEMBER Rg