State Consumer Disputes Redressal Commission
Harvinder Singh Riar vs M/S Premium Acres Infratech Pvt. Ltd. on 23 March, 2015
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Consumer Complaint : 06 of 2015 Date of Institution : 15.01.2015 Date of Decision : 23.03.2015 1] Sh. Harvinder Singh Riar S/o Sh. Surat Singh Riar, resident of 301/3, Wembley Society, Sector 91, Mohali - 140308 (Punjab) previously resident of H.No.5/319, Block I, Punjab Mandi Board Flats, Sector 66, S.A.S. Nagar (Mohali), Punjab. 2] Mrs. Raveena Riar W/o Sh. Harvinder Singh Riar S/o Sh. Surat Singh Riar, resident of 301/3, Wembley Society, Sector 91, Mohali - 140308 (Punjab) previously resident of H.No.5/319, Block I, Punjab Mandi Board Flats, Sector 66, S.A.S. Nagar (Mohali), Punjab. ......Complainants. Versus 1] M/s Premium Acres Infratech Pvt. Ltd., SCO 56-57, 3rd Floor, Sector 17-D, Chandigarh through its Managing Director. 2] M/s Premium Acres Infratech Pvt. Ltd., Villa No.205, TDI City Premium Acre Court Yard, Sector 110-111, SAS Nagar (Mohali). 3] 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. 4] Parminder Singh Sehgal (Director), Premium Acres Infratech Private Limited, R/o H.No.1227, Sector 42B, Chandigarh 160036. Second Address: Parminder Singh Sehgal (Director), Premium Acres Infratech Private Limited, R/o House No.61-62, Sector 70, Mohali. ....Opposite Parties. Complaint under Section 17 of the Consumer Protection Act, 1986. BEFORE: SH. DEV RAJ, PRESIDING MEMBER.
MRS. PADMA PANDEY, MEMBER.
Argued by: Mrs. Vertika H. Singh, Advocate for the complainants.
Sh. D. S. Dhiman, Advocate for the Opposite Parties.
PER DEV RAJ, PRESIDING MEMBER The facts, in brief, are that the complainants applied for booking of a flat in the Mega Housing Project of the Opposite Parties vide application dated 16.03.2010 and they were allotted flat No.16303 measuring 1440 Sq. feet super area. It was further stated that Buyer Agreement dated 17.05.2011 (Annexure C-1) was executed and the complainants opted for the construction linked payment plan. It was further stated that as per Clause 9 of the Buyer Agreement dated 17.5.2011, possession of the flat, in question, was to be handed over within 24 months (18 months + 6 months grace period) from the date of execution of the same. It was further stated that possession of the flat was to be handed over on or before 16.05.2013. It was further stated that the basic sale price of the flat was Rs.21,50,000/- and the aggregate sale price of the flat as agreed in the Buyer Agreement was Rs.22,16,800/-, which included external development charges (EDC) of Rs.1,16,800/-.
2. It was further stated that the complainants made payment to the tune of Rs.19,92,144/-, which Opposite Party No.1 admitted in its legal notice dated 13.10.2014 issued to the complainants. It was further stated that the approximately 90% of the total amount towards the sale price of the flat, was made by the complainants. It was further stated that the last installment paid by the complainants was of Rs.1,10,000/- on 28.02.2013. It was further stated that the last demand letter received by the complainants regarding the payment of installment was of Rs.3,93,496.37 as on 7.4.2014 (Annexure C-2). It was further stated that on receiving the aforesaid demand letter, the complainants visited the site of the said flat and found that the construction was not as per the progress depicted by Opposite Party No.1. It was further stated that when the complainants inquired from the official on the site as to when would the flat be ready for possession, the said official did not have any answer. It was further stated that the complainants also visited the office of Opposite Party No.1 but there also, they were was given false assurances. It was further stated that complainant No.1 vide letter dated 15.4.2015 (Annexure C-3) inquired regarding the status of construction and delivery of possession because the construction of the flat was undergoing at a very slow pace. It was further stated that Opposite Parties never bothered to reply to the same.
3. It was further stated that the complainants received information from some trustworthy source that the Directors of the Company, namely, Mr. Amit Jain and Sanjay Jain, with whom the complainants were dealing with, were removed from the office by Opposite Party No.4. It was further stated that the complainants paid all the amount from their hard earned money and were apprehensive that their money might be usurped by the Company as the response from the Company was not generating any kind of confidence in the complainants. It was further stated that the construction work even today after a lapse of approximately 1 ½ years, is at a very slow pace. It was further stated that the flooring is not complete till date. It was further stated that even the water and sewerage pipes have not been fitted properly. It was further stated that the pipes have just been erected without proper fitting which is merely an eye wash. It was further stated that the electrical wires have not been fitted, neither are there doors or windows fitted nor are there any fitting of plumbing till date. It was further stated that Opposite Party No.1 had promised the complainants that the master bedroom would be having wooden flooring but in contravention to that, simple vitrified tiles were affixed in the master bedroom.
4. It was further stated that to the utter surprise and shock to the complainants, when they received a legal notice dated 13.10.2014 (Annexure C-4), vide which Opposite Party No.2 raised a demand of Rs.9,80,540/-, when already 90% of the payment of the flat had been paid. It was further stated that the last demand raised by Opposite Party No.1 to the tune of Rs.3,93,496.37 vide letter dated 7.4.2014 already included late payment charges of Rs.18,690.90. It was further stated that the demand could not inflate to Rs.9,80,540/-, which was highly exorbitant. It was further stated that as per Annexure "A" attached with the legal notice dated 13.10.2014, Rs.4,25,242/- + Rs.15,388.63 was claimed as principal i.e. the basic price (due) + service tax, and the EDC was shown to be pending as Rs.58,400/-; Rs.30,000/- as electrification charges, Rs.30,000/- as water meter charges and Rs.20,000/- as sewerage charges. It was further stated that over and above the aforesaid charges, Rs.2,09,596/- had been claimed as inflation charges, Rs.50,000/- as club membership and Rs.80,408/- shown to be pending as delayed interest payment.
5. It was further stated that Opposite Party No.2 vide legal notice dated 13.10.2014, claimed an arbitrary and inflated amount of the entire price of the flat whereas the flat was still not complete and ready for possession as its construction was only 65% to 70% complete. It was further stated that Opposite Party No.2 was pressuring the complainants to make the entire payment of the flat. It was further stated that the inflation charges were calculated as per the whims and fancies of Opposite Party No.2 as the delay in handing over the possession was on the part of the Opposite Parties and not the complainants. It was further stated that there was no mention of any club membership fee in the Buyer Agreement dated 17.5.2011. It was further stated that Opposite Party No.1 failed to handover the physical possession of the flat on or before 16.5.2013 and delayed the possession by approximately 1 ½ years. It was further stated that complainant No.1 replied to the legal notice dated 13.10.2014 vide notice dated 4.11.2014 (Annexure C-5).
6. It was further stated that EDC charges were paid by the complainants but there was no development in Sector 110-111. It was further stated that there was no proper approach to the flat as there were no roads. It was further stated that no parks were developed and maintained and most importantly, there were not even any street lights till date. It was further stated that it was the responsibility of the Opposite Parties to assure that the development in Sectors 110-111, Mohali was appropriate and in accordance with the guidelines of GMADA. It was further stated that as per Clause 9 of the Buyer Agreement dated 17.5.2011, if the construction was delayed due to normal course, then the Company was bound to pay Rs.7,000/- pre month as delayed charges for the period of delay to the complainants but the Opposite Parties failed to make any kind of payment of delayed charges.
7. 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 complainants, 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, for declaring the legal notice dated 13.10.2014 (Annexure C-4) issued by the Opposite Parties as null and void; directing them (Opposite Parties) to give possession of Flat No.16303, complete in all respects; to pay Rs.7,000/- per month as delay charges for the period of delay in handing over possession since 16.05.2013 till the actual date of handing over of possession; interest @18% P.A. on the amount deposited by the complainants from the date of respective deposits till the date of actual physical possession; pay Rs.5 Lacs, as compensation, for mental agony and physical harassment; and cost of litigation, to the tune of Rs.50,000/-.
8. The Opposite Parties put in appearance on 20.02.2015. In their joint written version, Opposite Parties, took up certain preliminary objections to the effect that this Commission lacks the territorial jurisdiction on the ground that as per Clause 36 of the Agreement, the Courts situated at Delhi shall have exclusive jurisdiction to adjudicate any dispute arising out of the Agreement and that the present complaint involved forgery of documents, suspected role in embezzlement, pricing and the dispute of area, which cannot be decided summarily and can only be dealt with by the Civil Court.
9. On merits, it was stated that various customers grossly abused the process of law as they in connivance with Sanjay Jain committed fraud and caused wrongful loss to the OP Company and they also forged and fabricated the documents including letter head/pads of the OP Company. It was further stated that the complainants took the construction linked plan and they were in default of making the payment as per the schedule. It was admitted that the complainants paid a sum of Rs.19,92,144/- to the Company. It was further stated that the BSP of the said Villa was Rs.21,50,000/- excluding other charges such as electricity charges, sewerage charges, water charges, building cess, IFMS charges, club charges, service tax, inflation charges etc. It was further stated that at the time of execution of the Buyer Agreement, the complainants agreed to pay the other charges including BSP. It was admitted that the payment plan depicting the net sale price of the unit/villa No.16303 was always been mentioned in detail in the demand letter issued by Opposite Party No.1 alongwith the demand letter dated 7.4.2014. It was specifically denied that the installments amounting to Rs.1,10,000/- on 28.2.2013 being the last installment paid by the complainants as alleged.
10. It was further stated that the Opposite Parties on regular basis were sending the photographs on the status of construction of flats to the complainants. It was further stated that the complainants never visited the office of the Opposite Parties. It was further stated that the complainants were required to fulfil conditions/Clauses No.4(e) & (f) or to pay the amounts, which were demanded by the Opposite Parties from time to time. It was admitted that the possession of the premises was to be delivered by the Company to the floor allottees(complainants) within a period of 24 months from the date of execution of the agreement. It was further stated that no arbitrary inflation was charged by the Opposite Parties and the complainants were given due opportunity for taking possession of the said unit. It was further stated that the Buyers Agreement was not a genuine document as the same was not signed by the authorized signatory of the Company. It was further stated that the EDC charges were not fully paid by the complainants as per the schedule. It was further stated that the complainants were trying to manipulate the facts in order to harass the Opposite Parties as the complainants themselves were not ready to take the possession even after repeated reminders. It was further stated that the project of the Company was almost ready and the development was in full swing. It was further stated that the Opposite Parties are bonafidely paying the maintenance expenses against the said villa/unit No.16303. It was further stated that there was no delay in construction and the villa/unit, in question, is ready for possession but despite number of opportunities, the complainants are not coming forward to take possession. It was further stated that the Opposite Parties also sent cancellation notice due to non-payment of arrears. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
11. The complainants, in support of their case, submitted their separate affidavits, by way of evidence, alongwith which, a number of documents were attached.
12. The Opposite Parties, in support of their case, submitted the affidavit of Sh. Ranjit Singh, their General Manager, by way of evidence, alongwith which, a number of documents were attached.
13. The complainants filed replication wherein, they reiterated all the averments, contained in the complaint and repudiated the same, contained in the written version of the Opposite Parties.
14. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
15. The Counsel for the complainants has submitted that they were allotted a flat and Buyer Agreement in respect of Unit No.16303 having area of 1440 Sq. Ft., total price whereof was Rs.22,16,800/- was executed on 17.05.2011. She has further submitted that the complainants opted for construction linked installment payment plan and paid a sum of Rs.19,92,144/-. She further submitted that when the Opposite Parties raised demand of Rs.3,93,496.37Ps vide letter dated 7.4.2014 (Annexure C-2), the complainants vide Annexure C-3 wrote to them (Opposite Parties) that construction work was going on at a slow pace. She further submitted that the complainants had already made around 90% payment and even paid delayed interest and, as such, there was no justification for levying inflation charges. She has further submitted that there was delay in offering and delivering possession by the stipulated date viz. 16.5.2013. She further submitted that the Opposite Parties never offered possession but sent legal notice dated 13.10.2014 (Annexure C-4). She further submitted that Buyer Agreement (Annexure C-1) was duly signed by the authorized representative of the Opposite Parties and they were bound by the same. She admitted that out of total demand of Rs.9,80,540/- (Page 57), except club charges in the sum of Rs.50,000/-, Rs.2,09,596/- on account of inflation and Rs.1,618/- on account of maintenance charges, the remaining amounts (Rs.7,09,439/-) were payable by the complainants. She further submitted that unit was still not complete and certain works were yet to be executed.
16. The Counsel for the Opposite Parties, on the other hand, submitted that the Buyer Agreement (Annexure C-1) no doubt was signed by the authorized representative of the Opposite Parties, but the person who signed the Buyer Agreement on behalf of the Opposite Parties was authorized by Sh. Sanjay Jain, who was the Director at the relevant time and against whom FIR was lodged and investigation is going on. He further submitted that construction of flat was almost complete and possession was also ready but the complainants did not adhere to construction linked payment schedule and made only around 75% payment of basic sale price. He further submitted that on receipt of balance payment, possession shall be handed over. He further submitted that as per Clause 4 (c) of the Buyer Agreement, over and above the stated charges, the allottee was liable to pay connection charges for electricity, storm water, sewerage, broadband to the respective authorities or companies, and in case the Company arranged the same, then allottee was liable to pay the same to the Company. He further submitted that insofar as club membership charges are concerned, the same were payable to TDI. He further submitted that inflation charges were payable in terms of Clause 11 of the Agreement and justification for the same has been explained in Annexure R-5.
17. It is evident from the terms of the Buyer Agreement that the complainants opted for construction linked installment payment plan (page 38). The total basic sale price of the flat, in question, was Rs.21,50,000/- plus Rs.1,16,800/- on account of external development charges and preferential location charges were Nil. By allowing discount of Rs.50,000/-, the total price of the flat, in question, came to be Rs.22,16,800/-. The construction linked installment payment plan, opted by the complainants, is extracted hereunder:-
Payment Milestones Basis of Calculation Amount in INR BSP (Basic Sales Price) 2150000.00 EDC 116800.00 PLC 0.00 Discount 50000.00 At the time of registration 20% of BSP 430000.00 Within three months of allotment 10% of BSP 215000.00 Within three months of first installment 10% of BSP 215000.00 On commencement of demarcation of plot 10% of BSP 215000.00 On casting of ground floor roof 7.5% of BSP 161250.00 On casting of first floor roof 7.5% of BSP 161250.00 On start of brick work 7.5% of BSP + 25% of EDC 190450.00 On start of internal plastering 7.5% of BSP + 25% of EDC + 50% of PLC 190450.00 On start of flooring 5% of BSP + 25% of EDC + 50% of PLC 136700.00 On start of internal electrification 5% of BSP + 25% of EDC - 50% of Discount 111700.00 On start of internal plumbing 5% of BSP - 50% of Discount 82500.00 On final notice of possession 5% of BSP 107500 Total 2216800.00
18. It is also evident that the complainants, in fact, made payment in the total sum of Rs.19,92,144/- as admitted by the Opposite Parties, in Para 3 of their written statement, on merits. In the Legal notice dated 13.10.2014 (Annexure C-4) and calculation sheet Annexure-A (Page 87) (Exhibit R-3) also, the Opposite Parties admitted receipt of Rs.19,92,144/-.
19. The first question, which falls for consideration, is, as to whether existence of Clause 36 in the Buyers Agreement, bars the territorial jurisdiction of this Commission, to entertain and try the complaint. Section 17(2) of the Act, being relevant, is extracted hereunder:-
(2) A complaint shall be instituted in a State Commission within the limits of whose jurisdiction,--
(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain; or
(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided that in such case either the permission of the State Commission is given or the opposite parties who do not reside or carry on business or have a branch office or personally work for gain, as the case may be, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.
Clearly the Buyer Agreement (Annexure C-1) was executed between the complainants and the Opposite Parties on 17.05.2011 at Chandigarh. Further it (Agreement) bears the signatures of Amit Jain as authorized signatory of the Opposite Parties. Annexure C-2, which is Letter dated 07.04.2014 written to the complainants by the Opposite Parties, was also from their Chandigarh Office viz. SCO 56-57, 3rd Floor, Sector 17-D, Chandigarh. As such, a part of cause of action definitely accrued to the complainants for filing the instant complaint, against the Opposite Parties, at Chandigarh. In this view of the matter, this objection of the Opposite Parties, being devoid of any substance, stands rejected. A similar question arose, before the National Commission, in Smt. Shanti Vs. M/s. Ansal Housing & Construction Ltd. (supra), wherein the National Commission held as under:-
"This appeal is directed against the order dated 9.4.2001 of the Delhi Consumer Disputes Redressal Commission non suiting the appellant on a preliminary issue holding that Delhi State Consumer Dispute Redressal Commission will have no jurisdiction to entertain the complaint.
What led the State Commission to pass this order was clause 24 of the agreement for allotment of residential flat to the appellant. It is stated that 'any dispute arising out of this agreement shall be subject to jurisdiction of Lucknow Courts only". State Commission also relied on thedecision of the Supreme Court in the case of A.B.C. Laminart Pvt. Ltd. & Anr. Vs. A.P. Agencies, Salem - AIR 1989 SC 1239 to hold that only the courts in Lucknow would have jurisdiction.
We do not think State Commission examined the whole issue in a pragmatic manner. Complainant is a consumer and raised a consumer dispute under the Consumer protection Act, 1986. To help and assist a consumer and to achieve the objects of the Act, Section 11 of the Act was amended. This Section relates to the jurisdiction of the District Forum. Now a complaint could be filed against the opposite party not only at the place where he actually or voluntarily reside or personally works for gain but also where he carries on business or has branch office. The words "carries on business or has a branch office" were added by the amending Act of 1993. Jurisdiction of a District Forum is exclusively covered by Section 11 of the Act. For this we do not have to refer any provisions of the Code of Civil Procedure. Any provision of the agreement which oust the jurisdiction of a District Forum even from a place where the opposite party has a branch office cannot be held to be valid or binding. Moreover, the clause on which the complainant was non-suited refers to the jurisdiction of Lucknow Courts. District Forum is not a court as understood in the Code of Civil Procedure. That clause in the agreement will have no meaning as far as jurisdiction of the District Forum where the opposite party has even branch office is concerned.
National Commission has already taken a view on this aspect of the matter. Accordingly the impugned order of the State Commission is set aside and the matter is remanded to the State Commission to decide the complaint in accordance with law. Party shall appear before the State Commission on 8.7.2002 for further directions. This appeal is disposed of as above."
20. The next question, which falls for consideration, is, as to whether this Commission can adjudicate upon the present complaint, when there are allegations of fraud and forgery leveled by the Opposite Parties, against its Director and the complainants. Bare perusal of the Buyer Agreement reveals that the Buyer Agreement on each page bears the stamp and signatures of authorized signatory of the Opposite Parties. When the Agreement is duly signed by an authorized signatory of the Opposite Parties, they (Opposite Parties) 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 complainants. 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 complainants. The Opposite Parties can proceed against him, as per the provisions of law but the rights of the complainants, being third parties, due to the acts of the Director of the Company, could not be affected. This was an internal affair of the Company vis-à-vis its Director who allegedly committed fraud with it (Company). Thus, this objection of the Opposite Parties, being devoid of merit also stands rejected.
21. 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 complainants. Clause 9 of the Buyer Agreement executed on 17.05.2011 (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 offer of possession. That if the construction is delayed due to normal course, other than conditions set out in point 10, then the company shall pay Rs.7,000/- per month as delay charges for the period of delay."
22. The Buyer Agreement was executed on 17.05.2011 and computing 24 months period therefrom, the Opposite Parties were required to hand over possession by 16.05.2013. The complainants vide their letter dated 15.04.2014 (Annexure C-3) sent to the Opposite Parties, wrote to them, pointing out non-delivery of possession despite making approximately 90% of the price. Vide this letter, the complainants informed the Opposite Parties that they visited the site several times since March 2013 and found that the construction work was going on at a snail pace. Finally, the complainants sought clarification as to when the possession of the flat would be handed over to them by the Opposite Parties. Thus, while the Opposite Parties on account of their failure to adhere to the time schedule for delivering possession by 16.05.2013 were not only deficient in rendering service, but also indulged into unfair trade practice. The complainants are, therefore, entitled to a sum of Rs.7,000/- per month w.e.f. 16.05.2013 till handing over of possession, in terms of Clause 9 of the Buyer Agreement.
23. The next question, which falls for consideration, is, as to whether the Opposite Parties could increase the price of the flat on account of inflation. There is a specific clause relating to this aspect in the Buyer Agreement. Clause 11 of the Buyer Agreement dated 17.05.2011 (Annexure C-1), being relevant is extracted hereunder:-
"11. The price for the unit stipulated herein is based on wholesale Index for all commodities as ruling in. However, during the progress of the work, escalation in cost takes place which will be based on all India wholesale index for all commodities the effect of such increase as assessed by the Company and intimated to the intending (allottees) shall be payable by him/her over and above the price. The decision of the Company in this respect shall be final and binding on the intending Allottee(s). The increased incidence may be charged and recovered by the Company from the intending allottee(s) with anyone or more of the installments or separately."
Though in the afore-extracted clause, it is stipulated that during the progress of the work, if any escalation in the cost took place, the same was payable by the complainants over and above the price, yet the fact is that the actual physical possession of the unit, in question, has not been offered/delivered by the Opposite Parties to the complainants. When the Opposite Parties, themselves failed to adhere to Clause 9 of the Buyer Agreement and did not offer or handover the actual physical possession of the unit to the complainants till date despite deposit of approximately 75% sale consideration regarding which, the Opposite Parties in their legal notice dated 13.10.2014 (Annexure C-4) admitted and acknowledged receipt of Rs.19,92,144/-, the demand of inflation charges on account of alleged enhancement in the cost of construction, is not justified. Whenever there was delay, in making payment, the Opposite Parties charged exorbitant interest. The complainants, as per Annexure A (page 57) paid interest in the sum of Rs.1,86,440/- and another sum of Rs.80,408/- is shown payable by the complainants. No cogent evidence justifying demand of inflation charges in the sum of Rs.2,09,596/- has been brought, on record, by the Opposite Parties. No doubt, in Exhibit R-5, the Opposite Parties have given yearwise bifurcation of inflation charges for the years 2011-12 to 2014-15 but as per this document, the inflation has been arrived at, as if the construction cost was Rs.14,40,000/-, which is not correct. Had the Opposite Parties provided some calculation/details in accordance with Clause 11 of the Buyer Agreement, the position would have been different. In these circumstances, the provisions of Clause 11 of the Buyer Agreement cannot be enforced and liability for the alleged inflation could not be fastened upon the complainants. Thus, the demand of the Opposite Parties on account of inflation charges to the tune of Rs.2,09,596/- is totally illegal.
24. As regards deficiencies pointed out in Annexure C-7, all of them are not specific to the flat of the complainants. It is apparent from Annexure C-7 that construction is at final stage. The Counsel for the Opposite Parties also submitted that possession was ready. The complainants had opted for construction linked payment plan; made approximately 80% of basic price but did not adhere to the payment schedule strictly. Once the complainants deposited the balance payment, as submitted by the Opposite Parties, possession shall be handed over.
25. In so far as payment of club membership charges is concerned, the Counsel for the complainants has submitted that the complainants never opted for availing of the facility of club, which the Counsel for the Opposite Parties also admitted, during arguments and, therefore, the question of paying the club charges, in the sum of Rs.50,000/- did not arise.
26. The next question, which falls for consideration, is, as to whether the demand of Rs.9,80,540/- raised by the Opposite Parties through Annexure-A enclosed alongwith legal notice dated 13.10.2014 is justified or not. It may be stated here that as per Annexure R-3, which is summary statement as on 11.9.2014, an amount of Rs.11,72,849/- is shown due against the complainants whereas as per Annexure A, which is statement dated 15.9.2014 enclosed alongwith the legal notice dated 13.10.2014, the payable amount by the complainants is Rs.9,80,540/-. Therefore, the statement dated 15.09.2014 being latest is to be considered. Before raising the demand of Rs.9,80,540/- through legal notice, no formal demand was raised by the Opposite Parties. Out of the aforesaid demand, as discussed in the forgoing paras, a sum of Rs.2,09,596/- and Rs.50,000/- on account of club charges, is not payable by the complainants. Even a sum of Rs.1,618/- on account of maintenance charges for the period from November 2014 to March 2015 is not payable as the maintenance charges shall be leviable only when the possession is handed over. The following charges are, however, payable by the complainants:-
Balance sale price Rs.4,25,242.00 EDC Rs. 58,400.00 Service Tax/ Building Cess Rs. 15,389.00 IFMS Rs. 50,000.00 Sewerage charges Rs. 20,000.00 Electricity charges Rs. 30,000.00 Water charges Rs. 30,000.00 Delayed Interest Rs. 80,408.00 Payment __________________________________ Total: Rs.7,09,439.00 Thus, only a sum of Rs.7,09,439/- is payable by the complainants.
27. Since, the complainants, have suffered physical harassment and mental agony, at the hands of the Opposite Parties, they are also entitled to compensation. In our considered opinion, compensation in the sum of Rs.50,000/-, if awarded, shall meet the ends of justice.
28. No other point, was urged by the Counsel for the Parties.
29. For the reasons recorded above, the complaint is partly accepted, against the Opposite Parties, with costs, who are jointly and severally held liable and directed, as under:-
(i) To hand over the legal physical possession of flat No.16303 measuring 1440 Square feet in Premium Acres, Sector 110, Mohali, Punjab, complete in all respects, as per the terms and conditions of the Agreement, within a period of two months, to the complainants, from the date of receipt of a certified copy of this order, on payment of the legally due amount, by the complainants.
(ii)To execute the sale deed/conveyance and get it registered in the name of the complainants after handing over the actual physical possession of unit, in question, as per direction in Clause (i), 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 complainants.
(iii)To pay compensation @Rs.7,000/- per month for delay in delivering possession from 16.05.2013 up-till 31.03.2015 within two months from the date of receipt of a certified copy of the order.
(iv)To pay compensation @Rs.7,000/- per month for delay in delivering possession beyond 31.03.2015 by the 10th of following month till actual handing over of physical possession.
(v)To pay compensation, in the sum of Rs.50,000/- for causing mental agony and physical harassment, to the complainants, within two months from the date of receipt of a certified copy of this order.
(vi)To pay cost of litigation, to the tune of Rs.15,000/-, to the complainants.
(vii)The complainants shall make the payment of Rs.7,09,439/- plus service tax, as against demand of Rs.9,80,540/-, to Opposite Parties, within a period of one month from the date of receipt of a certified copy of the order. In the event of default, interest @12% shall be payable by the complainants till actual payment.
(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 (iii) alongwith interest @9% per annum from the date of default, till payment and the amount mentioned in Clause (iv) from the date of default till the delivery of possession and the amount mentioned in Clause (v) with interest @9% per annum from the date of default till realization, besides payment of costs, to the tune of Rs.15,000/-.
30. Certified Copies of this order be sent to the parties, free of charge.
31. The file be consigned to Record Room, after completion Pronounced.
March 23, 2015.
Sd/-
[DEV RAJ] PRESIDING MEMBER Sd/-
[PADMA PANDEY] MEMBER Ad