State Consumer Disputes Redressal Commission
Dr. Rachna Soni vs M/S Barnala Builders And Property ... on 19 December, 2017
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
Consumer Complaint No. 355 of 2016
Date of Institution : 09.11.2016
Date of Reserve : 28.11.2017
Date of Decision : 19.12.2017
Dr. Rachna Soni w/o Sh. Rajeev Soni, resident of H. No. 74, First
Floor, Ambika Vihar Paschim Vihar, New Delhi, presently residing
at H. No. 1700, Sector 4, Panchkula, Haryana.
....Complainant
Versus
1. M/s Barnala Builders and Property Consultants, through its
Managing Director, Regd. Office : SCO 1, Zirakpur-Patiala Road,
Opposite Yes Bank, Zirakpur, District SAS Nagar, Mohali, Punjab
2. Sh. Satish Jindal, Managing Director, M/s Barnala Builders
and Property Consultants, Regd. Office : SCO 1, Zirakpur-Patiala
Road, Opposite Yes Bank, Zirakpur, District SAS Nagar, Mohali,
Punjab
....Opposite parties
Consumer Complaint under Section 17 of
the Consumer Protection Act, 1986.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member.
Shri Rajinder Kumar Goyal, Member
Present:-
For the complainant : Sh. A.K. Sharma, Advocate
For the opposite parties: Sh. Ambrish Sharma, Advocate
Consumer Complaint No. 355 of 2016 2
GURCHARAN SINGH SARAN, PRESIDING JUDICIAL MEMBER
ORDER
The complainant has filed this complaint under Section 17 of the Consumer Protection Act against the Ops on the averments that Ops raised their residential project under the name and style of Maya Garden City, Zirakpur, SAS Nagar. In the year 2012, it was widely published in various newspapers. The complainant being interested to purchase a residential flat contacted the Ops. It was assured by Ops that the facilities in the project would be world class and it is duly approved by the Competent Authority. It will have basic amenities like kids playing area, covered stilt parking, separate lift for each block, intercom facility from security guard room, separate rest room for drivers and maid servants, provisions of DTH TV facility, club house with facilities like swimming pool, health club, yoga centre, library, community hall, pool/billiards room, table tennis etc. The construction would be earth quake resistant and round the clock security, uninterrupted water supply, underground drainage system, lushgreen gardens and jogging track. Believing the assurances given by the Ops, the complainant applied for a flat No. 902, Block No. G4, Category 3 BHK, with super area of 1852 sq. feet vide application dated 16.4.2012 and also deposited an amount of Rs. 3 Lacs vide cheque bearing No. 323465 dated 16.4.2012 drawn on HDFC Bank. Ops issued allotment letter No. 2886 dated 5.5.2012 allotting plot No. 902, Block G-4, Floor IXth Consumer Complaint No. 355 of 2016 3 and it was assured in the allotment letter that possession would be handed over in April, 2014. On 3.8.2012, buyer's agreement was executed between the parties. On the basis of agreement, the complainant applied for home loan in State Bank of Patiala, Sector- 8, Chandigarh. The project of Ops was approved by the said Bank for the grant of home loan. The tripartite agreement was executed and home loan of Rs. 30 Lacs was sanctioned in favour of the complainant by the bank. The payment to the Ops was construction linked payment plan. It was communicated to the bank. Ops used to send the demand for payment of installment from time to time and every time the payment used to be made by the complainant promptly. Inspite of timely payment as per the schedule given by the Ops, the Ops raised unjustified demand of Rs. 2,47,147/- in their letter dated 29.3.2014 towards interest on account of alleged delayed payment without giving its details. The complainant was shocked to know about the unnecessary demands raised by the Ops. He wrote a letter dated 10.4.2014 stating details of timely payment of dues and requested them to withdraw the demand but there was no response. Reminder was issued on 30.6.2014. Complainant also applied for certain information under RTI to her bank and detail of dates of demand letter and dates of release of payment by them, clearly indicated the prompt and meticulous payment of dues by the bank without any default. Ops after receiving the above referred letters started harassing the complainant and raised an illegal demand of service tax of Rs. 1,37,196/- contrary to Clause 18 of the agreement under which it Consumer Complaint No. 355 of 2016 4 was to be paid by the Ops. The complainant made a representation to withdraw the demand but in vain. According to Clause No. 5 of the agreement, offer of possession of the flat was given to the complainant on 2.6.2015, subject to payment of Rs. 2,60,000/- as balance cost, Rs. 2,50,862/- on account of interest and Rs. 1,46,296/- towards service tax and Rs. 1,83,348/- towards one time maintenance charges. It also referred that the parking space would be on "first come first serve basis", which act is contrary to the provisions of the agreement to sell. In the said letter, it has been stated to take the possession within a period of 15 days, failing which the complainant shall be liable to pay penalty @ Rs. 10/- per sq. ft. per month. The complainant was forced to pay the amount as demanded, it was the pre-condition to take the possession, therefore, he made all the payments and took the possession and Ops issued 'No Due Certificate' on 18.6.2015 and possession letter was issued on 15.7.2015. After taking the possession, it was found that following facilities were missing:-
a) Covered stilt parking,
b) Intercom facility from security guard room,
c) Provision of DTH TV facility in each apartment,
d) Club house facility
e) Jogging track
f) Internal roads have been reduced as provided in layout plan.
The flat was booked by the complainant after considering various facilities to be provided by the Ops but above referred facilities Consumer Complaint No. 355 of 2016 5 were missing. The layout plan further shows internal roads 32.6"
and 35' wide around G-4 tower whereas Ops failed to provide the aforesaid wide roads and also failed to provide the stilted parking and they raised temporary parking shed by encroaching upon the open space of internal roads. In case there is delay in delivery of possession, Ops were liable to pay penal charges @ Rs. 5/- per sq. ft. per month. The possession according to the agreement was required to be given on 30.11.2014 but actually it was given on 2.6.2015, therefore, the complainant is entitled to get late delivery possession charges. It has been stated that super area of the flat is 1852 sq. ft. The complainant calculated the plinth area of the flat i.e. 1535 sq. ft. approximately. Ops were requested to provide the detailed calculations of super area but no response was received. Details have not been given with an intention to conceal their fraud how the cost of the flat has been worked out. The Ops indulged in unfair trade practice because the property was not in the name of the Ops at the time of raising the scheme. The sale deed was executed in favour of the builder on 15.5.2012 whereas the allotment letter was issued on 5.5.2012. Alleging unfair trade practice and deficiency in service on the part of Ops, the complainant has sought refund of Rs. 72 Lacs i.e. present cost of the flat alongwith interest @ 18%, to refund a sum of Rs. 9,01,363/- on account of interest paid to State Bank of Patiala for availing home loan of Rs. 27,64,000/-, to refund a sum of Rs. 1,50,500/- on account of delayed interest alongwith interest @ 18%, to refund a sum of Rs. 2,50,000/- i.e. interest on a sum of Rs. 20 Lacs spent Consumer Complaint No. 355 of 2016 6 on the cost of the flat, to refund a sum of Rs. 1,37,196/-, Rs. 1,83,348/- as service tax, to refund a sum of Rs. 28,811/- as interest on the service tax, pay compensation on account of delayed possession of Rs. 64,820/- @ Rs. 5/- per sq. ft. per month, Rs. 5 Lacs as compensation for harassment and litigation expenses of Rs. 1 Lac.
2. Upon notice, Ops appeared and filed their reply taking preliminary objections that the value of the goods and compensation is more than Rs. 1 Crore, there is no deficiency in service or unfair trade practice on the part of Ops and the complainant cannot raise the dispute on false and frivolous grounds; the complainant is not coming forward to get the sale deed of the flat executed as she is not ready to spend a sum of Rs. 4 Lacs for registration of the sale deed. Complainant has filed the present complaint for settlement of the accounts, therefore, it is not within the domain of the State Commission and the matter be relegated to the Civil Court; the complainant cannot be considered as a consumer as she has taken the flat for investment purposes; she has taken the possession on 15.7.2015 but she has not shifted in that flat; the complaint is bad for mis-joinder of parties as State Bank of Patiala has not been made a party to it; in view of arbitration Clause, the matter should be referred to the Arbitrator as referred in the agreement; the complainant could not raise the issue with regard to service tax as the Commission has no jurisdiction to decide the issue of service tax and that complaint is without any cause of action and has been filed with malafide Consumer Complaint No. 355 of 2016 7 intention, just to get advantage against the Ops, therefore, it be dismissed. On merits, it has been reiterated that the complainant is not a consumer because after taking the possession on 15.7.2015, she has not shifted to the flat, otherwise, application with regard to allotment of the flat, various payment and delivery of the possession of the flat as referred in the complaint is admitted being a matter of record. It has been further stated that as per the opted plan, complainant was required to deposit 95% of the cost of the flat within 410 days from the date of booking but the complainant failed to comply with the payment plan. Ops had issued the demand letters time and again. The demand letter issued does not reflect any amount of interest demanded by the Ops. Ops did not receive any letter from the complainant. There is no employee in the name of Mr. Pandey as General Manager, Finance. The complainant was very much aware about imposition of interest @ 20% on the delayed payment. Ops did not have any knowledge about the information taken by the complainant under the RTI. As per para No. 7 of the application form, it has been made clear that the applicant shall bear and paid directly, or if paid by the seller, then reimburse to the seller, on demand, Government rates, taxes, cesses, charges, wealth tax, taxes of all and any kind by whatever name called, levy of proportionate development charges transport, irrigation facilities etc. whether levied or may be levied in future, on the Project (in proportion to the super area of the Unit) or the Unit, as the case may be, as applicable from the date of application of the Applicant. If such charges are increased (including with Consumer Complaint No. 355 of 2016 8 retrospective effect) after the conveyance/ sale deed has been executed, then these charges shall be treated as unpaid sale price of the unit and the seller shall have the first charge on the Unit of the complainant, entitled to recover those charges. As per para No. 18 of the agreement, Ops shall be responsible to pay the dues, charges, levies etc. that may be imposed by the Government/Municipal Authority or any other Authority on the Housing Project. Nowhere in para No. 18 has been mentioned that the Ops will pay the service tax, which is due to the complainant. In Finance Act, 1994, Service Tax is levied as a taxable service and not on the service provider. The service provider is only means for deposit of the service tax to the credit of the Central Government. It is an indirect tax and every indirect tax has to be paid by the Service Recipient. Provider of service is an assessee under Section 65 of the Finance Act and he has to collect the service tax from the user of the service as contemplated under provisions of Central Excise Act. The Unit of the Ops have 1600 flats, they started the delivery of possession of the flats on 10.11.2014 and till date possession of almost 1575 flats have been delivered to the respective allottees out of 1625 allottee. In block G-4, most of the allottees have taken over the possession. The housing project is fully equipped with all facility like water, electricity, lifts and other basic amenities. They had delivered the possession of the flats to the allottee tower wise. There is no extra ordinary delay in offering the possession. The penalty @ Rs. 10/- per sq. ft. for not taking the possession within time is there but no such penalty has been Consumer Complaint No. 355 of 2016 9 charged from the complainant or from any one of the allottee. The complainant was bound to clear all the payments before getting the possession. As and when the complainant made the payments, Ops issued the possession certificate. There is sufficient covered car parking. Every flat has provision of installation of DTH facility. Club house is under construction and near to completion and will be made operational very shortly. There is proper jogging track in the central park. Gigantic Internet Company is providing internet facility. Complainant is not residing in the housing project in question and then she can allege that Ops are not providing this facility in the housing project. The housing project has been constructed as per the approved layout plan and roads have been developed as per the lay out plan. There is temporary car parking shed, which has been developed as per layout plan. Initially stilt parking was allotted but she herself was not interested for the same in the present parking due to superstition of cardinal direction and astrological reason. Complainant has already taken the electricity connection from PSEB having electricity A/c No. Z74BS310997P and Ops are providing all the services as promised. The super area consist of carpet area, area covered by walls, balcony area, parking area, circulation area etc. and flat was booked by the complainant after going through all the documents and specifications of the flat. The complainant has wrongly measured the flat. Registration and non-registration of any sale deed does not create any right or ownership of the person in any property. The complainant himself has not come forward to get Consumer Complaint No. 355 of 2016 10 registered the sale deed in her favour. The car parking has been erected as per layout plan. There is no deficiency in service or any unfair trade practice on the part of Ops. Complaint is without merit and be dismissed with special costs under Section 26 of the CP Act.
3. The parties were allowed to lead their respective evidence.
4. In support of his allegations, the complainant had tendered into evidence her affidavit Ex. C-A and documents Exs. C-1 to C-33. On the other hand, Ops had tendered into evidence affidavit of Sandeep Bansal, Manager as Ex. Op-A and documents Ex. Op-1 to 6.
5. We have heard the learned counsel for the complainant and learned counsel for Ops and have carefully gone through the case file.
6. Before coming to the merits of the case, preliminary objections have been taken by the Ops, which are required to be dealt with. Firstly a point has been raised by the counsel for the Ops in the written reply that the value of the goods and compensation is more than Rs. 1 Crore, therefore, the complainant does not fall within the pecuniary jurisdiction of this Commission. We have calculated the amount as demanded by the complainant in his complaint i.e. Rs. 72,00,000/-, Rs. 9,01,363/-, Rs. 1,50,500/-, Rs. 2,50,000/-, Rs. 1,37,196/-, Rs. 1,83,348/-, Rs. 28,811/-, Rs. 64,820/- and Rs. 5 Lacs, it comes to Rs. 94, 16,038/- whereas the pecuniary jurisdiction of this Commission is from Rs. 20 Lacs to Consumer Complaint No. 355 of 2016 11 Rs. 1 Crore. Therefore, we are of the opinion that the complaint falls within the pecuniary jurisdiction of this Commission.
7. It has been further stated in the written reply that the matter pertains to settlement of Account, therefore, the matter be relegated to the Civil Court and it does not come within the domain of the State Commission. However, various amounts have been demanded by the complainant in his complaint, which pertains to the services to be provided by the Ops. Compensation, if any, with regard to default in the service, if any, is to be provided by the Consumer Fora only. The matter relates to the housing service. It is very well covered under Section 2(1)(o) of the Act, therefore, the Consumer Fora have the jurisdiction to try these matters and we do not agree with the plea raised by the counsel for the Ops that the matter be relegated to the Civil Court, in case some amounts have been demanded by the complainant on account of deficiency in service, if any, on the part of Ops.
8. It has been stated that the complainant is not a consumer because after taking the flat on 15.7.2015, she has not shifted to it. It is the discretion of the complainant as to when shift in the flat after taking the possession on 15.7.2015, she has not sold it. The Op has not referred to any other transaction that she is in the habit of sale and purchase of the properties without which we cannot give the findings that the complainant is an investor. A reference can be made to the judgment 2017(3) CLT 459 "Pranab Basak versus Suhas Chatterjee" that plea of the Op that complainant booked two flats. Hence, it was for commercial Consumer Complaint No. 355 of 2016 12 purpose. It was observed that merely because a person booked two flats in a project, it cannot be concluded that he had booked the flat for commercial purpose unless it is established that complainant is dealing in sale and purchase of real estate or his legal intention in booking the flat was to sell the same on profit or appreciation of the value of the real estate but no such evidence has come on the record. Therefore, the plea taken by the Ops that flat was booked by the complainants for investment purposes, is not corroborated on the basis of evidence on the record.
9. A point has been raised that complaint is bad for non- joinder of the parties as State Bank of Patiala is not a party to it. State Bank of Patiala is just a financial institution, which had lended the loan to the complainant. No deficiency in service on the part of SBOP has been alleged in the complaint. Therefore, the bank is not a necessary party in this case.
10. There is Clause in the agreement that in case of any dispute, the matter is required to be referred to the Arbitrator. Counsel for the Op has referred to Clause 23 of the agreement but no separate application to refer the matter to the Arbitrator was filed during the pendency of the complaint alongwith application under Section 8 of the Arbitration and Conciliation Act. Moreover, under Section 3 of the Act, there is additional remedy provided to the Consumer Fora to entertain the complaint. Therefore, even if there is Arbitration Clause under Section 3, Consumer Fora have the jurisdiction to entertain the complaint, therefore, the complaint is maintainable before this Commission.Consumer Complaint No. 355 of 2016 13
11. Now coming to the merits of the case, it is matter of record that the complainant had booked the flat with Ops i.e. Flat No. 902, Block No. G-4, Category 3 BHK, with super area of 1852 sq. was applied for and it was allotted and then its possession was delivered to the complainant and complainant had taken the possession on 2.6.2015. In his complaint, the complainant has alleged that Ops raised undue demands and with regard to the amenities to be provided by the Ops in the project/complex. Firstly, he has raised the issue that a sum of Rs. 2,47,000/- was illegally demanded by the Ops in their letter dated 29.3.2014. The said letter is Ex. C-13 dated 2.6.2015, however, there is no letter dated 29.3.2014. There is one letter dated 24.3.2014 vide which a sum of Rs. 1,37,196/- has been demanded towards service tax but para No. 9 of the complaint shows that he has referred a demand of Rs. 2,47,147/- on account of alleged delayed payment for which we can refer the letter dated 2.6.2015 from the Ops vide which the offer of possession of the flat was given to the complainant in which a sum of Rs. 2,50,862/- was demanded from the complainant. With regard to the deposit of the payment with Ops, counsel for the complainant has referred to the possession certificate dated 15.7.2015 Ex. C-15 wherein it has been mentioned that it is certified that they have received the entire cost of the flat from Dr. Rachna Soni, which shows that the possession was delivered to the complainant after receiving the various amounts referred in the letter dated 2.6.2015. The Ops in their letter has referred to Annexure C-9 vide which demand for service tax was raised. It has Consumer Complaint No. 355 of 2016 14 been further stated that the complainant was very well aware about imposition of interest @ 20% p.a. on delayed payment. Therefore, the complainant cannot say that the interest on delayed payment is not payable. The complainant herself was defaulter and not deposited the payment within time, as such, the complainant was liable to pay interest, therefore, the payment of this amount has not been denied by the Ops. Whether there was delay in making the payment to the Ops. The payment schedule has been given alongwith the agreement Ex. C-5 i.e. construction linked plan, which was opted by the complainant because the complainant has not stated that he has adopted down payment plan. The construction linked payment plan Plan-B reads as under:-
CONSTRUCTION LINKED PAYMENT PLAN (PLAN "B") Due Date Initial Booking Amount with Rs. 1,00,000/- (One lac) Application Within 30 days from the date of 15% of BSP (Inc. Initial Booking application Amount) Within 90 days from the date of 15% of BSP application Within 150 days from the date of 15% of BSP application Within 230 days from the date of 15% of BSP application Within 340 days from the date of 15% of BSP application Within 410 days from the date of 15% of BSP application On Completion of Project 10% + Stamp Duty + IBMS + Car Parking Charges + any other charges for additional load if required + any other charges applicable The complainant according to this plan was to make the payment within a specified period i.e. within 30 days, 90 days, 150 days, 230 days, 340 days, 410 days from the date of application. However, Consumer Complaint No. 355 of 2016 15 alongwith the tripartite agreement payment schedule was sent to the State Bank of Patiala, Chandigarh Ex. C-8, the plan has been referred as under:-
CONSTRUCTION LINK PAYMENT PLAN TOWER NAME : A1 TO A4, G1, G4 & I 3.
On application of booking 200000
Within 30 days from the date of booking 20% of BSP (Inclusive of
initial booking amount)
Within 60 days from the date of booking 15% of BSP
Within 90 days from the date of booking 10% of BSP
On Casting of Ground Floor Roof Slab 10% of BSP
On Casting of Second Floor Roof Slab 10% of BSP
On Casting of Fourth Floor Roof Slab 10% of BSP
On Casting of Sixth Floor Roof Slab 10% of BSP
On Casting of Eighth Floor Roof Slab 5% of BSP
On Casting of Tenth Floor Roof Slab 5% of BSP
At the time of notice of possession 5% of BSP
The cost of the flat is Rs. 52 Lacs mentioned in the application form itself. At the time of application, a sum of Rs. 3 Lacs was paid on 16.4.2012 and as per the account statement given by the Ops Ex.
Op-4, a sum of Rs. 2,40,000/- was paid on 3.5.2012 and on 27.4.2012, a sum of Rs. 5 Lacs was paid. Whereas upto 19.5.2012, a sum of Rs. 10.40 Lacs was due, which was paid upto 27.4.2012 i.e. in advance to the date given. Then a sum of Rs. 7,80,000/- was due on 18.7.2012 and Rs. 7,80,000/- on 16.9.2012 and a sum of Rs. 15.75 Lacs was paid on 30.10.2012, here this payment is late. Then payments were due on 16.9.12, 5.12.12, 25.3.13 and 3.6.13 @ Rs. 7.80 Lacs i.e. 15% of the price. However, the complainant made the payments as under:-
Actual Date Amount Paid
19-Apr-12 300000
3-May-12 240000
27-Apr-12 500000
30-Oct-12 1575000
18-Apr-13 190000
23-Apr-13 205000
Consumer Complaint No. 355 of 2016 16
24-Apr-13 110000
14-Jun-13 187000
15-Jun-13 333000
3-Aug-13 190000
15-Aug-13 330000
15-Oct-13 181000
19-Oct-13 339000
24-Mar-14 100000
25-Mar-14 120000
10-Apr-14 40000
4940000
The counsel for the complainant has referred to the information given by State Bank of Patiala to the complainant under RTI Ex. C-12 vide which it has been referred that amount has been released as under:-
S. N. Date of Release Amount released
(Rs.)
1 30/10/2012 1532250/-
2 24/04/2013 110000/-
3 15/06/2013 333000/-
4 05/08/2013 330000/-
5 19/10/2013 339000/-
6 25/03/2014 120000/-
2767200/-
and they have further intimated the date of demand and date of release as under:-
S. N. Date of Demand Date of release
1 30/10/2012 30/10/2012
2 19/04/2013 24/04/2013
3 12/06/2013 15/06/2013
4 01/08/2013 05/08/2013
5 18/10/2013 19/10/2013
6 25/03/2014 25/03/2014
Alongwith the tripartite agreement, Ops had given the payment plan to the Banker vide their letter Ex. C-8 referred above. According to it, the bank was to release the payment on the basis Consumer Complaint No. 355 of 2016 17 of construction raised and in case we read this letter alongwith the letter Ex. C-12, the payment has been released within a day or so or maximum within a period of 4-5 days, therefore, these payments are not delayed payments. Otherwise, the Ops have not placed on the record their demand letters and that the payments made by the Bank were late than as referred in the letter Ex. C-12. Therefore, except the payment of Rs. 15.75 Lacs paid on 30.10.2012, other payments are in time. The Ops have not given the calculation how they have calculated the interest amount as Rs. 2,50,862/-. No doubt that Ops will be entitled to interest on the delayed payment, Ops can calculate the interest on the amount due on 18.7.2012 and on 16.9.2012, which was paid on 30.10.2012 as per recital in the agreement and excess amount, if any, is liable to be refunded to the complainant.
12. It has been stated by the counsel for the complainant that a demand of Rs. 1,37,196/- towards service tax as referred in letter dated 24.3.2014 Ex. C-9 is illegal and similarly a reference of Rs. 1,46,296/- towards the service tax is illegal. He has referred to Clause No. 18 of the agreement, which reads as under:-
"18. That the first party shall be fully responsible for any kind of dues, charges, levies, etc. that may be imposed by any Government/Municipal Authority or any other authority on the 'housing project' before 30th of November 2014 i.e. the date of delivery of possession."
However, counsel for the Ops stated that it relates to the housing project and not with regard to the individual services availed by the Consumer Complaint No. 355 of 2016 18 complainant. The definition of housing project has been given in the agreement itself, which reads as under:-
(e) "Housing Project" means the residential project viz.
"Maya Garden CITY", of the first party, situated at Chandigarh Ambala Highway, Village Singhpura, NAC Zirakpur, Tehsil Derabassi, District-Mohali(Pb.) from which the apartment(s)/flat(s) are sought to be sold of regarding which the present Agreement to sell pertains:"
It does not cover the individual service. Counsel for the Ops has further referred that service tax has been imposed by the Government as per Finance Act, 1994 and it is an indirect tax paid by the service recipient and the 'service provider' is assignee under Section 65 of the Finance Act and has to collect the service tax from the user of the service as contemplated under the Central Excise Act. These provisions have not been rebutted by the counsel for the complainant but he simply relied upon Clause 18 of the Agreement, which does not deal with the individual service tax. Alongwith the application form, terms and conditions were also given and para No. 7 of the terms and conditions is as under:-
"7. The Applicant shall bear and pay directly, or if paid by the seller, then reimburse to the seller, on demand, Government rates, taxes, cesses, charges, wealth tax, taxes of all and any kind by whatever name called, levy of proportionate development charges transport, irrigation facilities and power facilities etc. whether levied or may be levied in future, on the Project (in proportion to the super area Consumer Complaint No. 355 of 2016 19 of the Unit) or the Unit, as the case may be, as applicable from the date of application of the Applicant. If such charges are increased (including with retrospective effect) after the conveyance/sale deed has been executed, then these charges shall be treated as unpaid sale price of the Unit and the seller shall have first charge on the Unit of the Applicant for the recovery of such charges."
which shows that Government taxes, if any, on demand are to be paid by the complainant. Therefore, we are of the opinion that service tax was rightly demanded by the Ops from the complainant and he was to pay this tax to the Government through Ops, therefore, the complainant is not entitled to refund of any service tax paid by the complainant to the Ops.
13. It has been stated that the parking space was not provided by the Ops, although payment with regard to the parking space was taken by the complainant. The counsel for the complainant has referred to the letter dated 2.6.2015 i.e. offer of possession of the flat in which there is a reference that they have sufficient parking place in their housing project for all the allottees, the same will be allotted preferably to all the allottees "on first come first serve basis". There is photograph chart Annexure C-17 page No. 2, where parking has been given to the complainant in the open shed. Whereas in the layout plan duly approved by the Executive Officer, Municipal Council, Zirakpur filed on the record by the counsel for the complainant, it shows stilt car parking level 'Zero'. No contrary layout plan has been placed on the record by Consumer Complaint No. 355 of 2016 20 the counsel for the Ops that they had the approval of the layout plan to construct the parking in the open space left in between the towers. Therefore, the Ops are deficient not to provide the stilt covered parking to the complainant to which she is entitled.
14. It has been stated that as per the agreement, the possession was to be delivered by 30.11.2014, failing which it was agreed that the complainant will be entitled to compensation @ Rs. 5/- per sq. ft. per month whereas the offer of possession was given on 2.6.2015, therefore, upto 2.6.2015, the complainant is entitled to late delivery possession charges. It has not been denied by the complainant that as per the agreement Clause 5, the possession was to be delivered on or before 30.11.2014 whereas for the first time the offer of possession letter was issued on 2.6.2015, therefore, w.e.f. 1.12.2014 to 2.6.2015, the complainant is entitled to late delivery possession charges @ Rs. 5/- per sq. ft. of the super area. It has been argued by the counsel for the Ops that they were to deliver possession of number of towers and about 1500 families have shifted there and there is not much delay in delivery of possession, therefore, no penalty charges could be awarded to the complainant. In case for any delay in payment, the Ops are charging interest @ 20% then certainly complainant is also entitled to penalty charges, in case there is delay in delivery of possession. Therefore, the complainant will be entitled to late delivery charges @ Rs. 5/- per sq. ft. of the super area 1852 sq. ft. from 1.12.2014 to 2.6.2015.
Consumer Complaint No. 355 of 2016 21
15. It has been stated by the counsel for the complainant that after getting the possession, the complainant found that following facilities has not been given to the complainant:-
a) Covered stilt parking
b) Intercom facility from security guard room,
c) Provision of DTH TV facility in each apartment.
d) Club housing facility.
e) Jogging track.
f) Internal roads have been reduced as provided in layout
plan.
With regard to the covered stilt parking, it has been referred that there is temporary car parking shed, which has been developed as per layout plan. Initially stilt parking was allotted but she herself was not interested for the same due to superstition of cardinal direction and astrological reason. But no such evidence has been produced on the record. The layout plan does say parking in the open. Therefore, complainant will be entitled to stilt parking.
16. With regard to intercom facility, DTH facility, it has been stated that the same has been provided to each and every flat. If according to the plea taken by the Ops that this project consist of more than 1600 flats then they must have engaged some firm to provide intercom facility and provision of DTH TV facility but Ops have not placed on the record any document vide which this facility was taken from any firm. Even no document with regard to getting this facility from any firm or no evidence of any mechanic or engineer has been placed on the record, who has provided this Consumer Complaint No. 355 of 2016 22 facility to each and every flat. Therefore, we do not agree with the plea raised by the counsel for the Ops that these facilities have been provided to all the flat owners.
17. With regard to Club House facility, it has been admitted that it is in the process of construction, therefore, some time frame can be given to the Ops to complete the construction and made it operational.
18. With regard to Jogging Track, counsel for the Ops have stated that it has been provided. He has referred to photograph as placed on page 244 of the file, where there is one constructed lane, connecting the different towers. Counsel for the Ops has stated that photograph at page No. 245 make it clear that jogging track is there. No contrary evidence has been placed on the record by the complainant. Complainant has not examined any other occupant of the flats that no such jogging track has been provided by the Ops, therefore, we do not concede the plea taken by the counsel for the complainant that no jogging track has been provided by the Ops.
With regard to reducing of the road as provided in the layout plan, the counsel for the complainant has referred to the photographs chart on the record as Annexure C-17 wherein parking has been placed in the open space by reducing the width of the roads. He has further pointed out towards the brochure wherein against Tower-G-4, there is 35' road on the southern side, 32.6" on northern side and 35' on the eastern side and west side and by encroaching upon the area the width of the roads has been reduced by the Ops. Counsel for the Ops emphatically argued that Consumer Complaint No. 355 of 2016 23 construction of the shed has been made according to the layout plan. In the layout plan duly sanctioned by the Municipal Council, Zirakpur as Annexure C-20 in which there is no provision of coverage to the road area, open area and stilt parking at level Zero has been provided. It seems that stilt parking space may not be sufficient at zero level, therefore, they have provided the open parking by covering the open area/road, which is against the layout plan, which the Ops cannot prove. They are required to remove the unauthorized sheds raised in the open area/roads.
19. It has been argued by the counsel for the complainant that super area of the flat is 1852 sq. ft. whereas plinth area of the flat is 1535 sq. ft. He had demanded the calculations of the super area, which was not provided. However, it is fact that plinth area of the flat and super area are different. Super area includes plinth area plus common area of the owners of the flats. The complainant has placed on the record the layout plan from where the common area can be calculated and after that the super area can be calculated by the complainant. In case, it was less than the payment received by the Ops then he could raise such a demand from the Ops but no calculations has been made by the complainant to prove that there is a difference in super area for which the payment has been taken from him by the Ops, therefore, the complainant is not entitled to this relief.
20. With regard to refund of the amount of the cost of the flat alongwith interest, once the complainant has taken the possession of the flat then he cannot raise the refund of the money Consumer Complaint No. 355 of 2016 24 paid by him as a cost of the flat. In case it was so, she should not have taken the possession or after taking the possession, she would have first surrender the flat and only then she could raise the demand but the complainant has neither surrendered nor any reference has been made in the complaint to surrender the flat, in that event, she is not entitled to refund of the cost of the flat or interest etc. paid to the bank as loan amount.
21. No other point was raised.
22. Sequel to the above, we partly accept the complaint and direct the ops as under:-
(i) calculate the interest @ 20% on a sum of Rs.
7,80,000/- from 19.7.2012 to 30.10.2012 and on a sum of Rs. 7,80,000/- from 16.9.2012 to 30.10.2012 @ 20% deduct that amount from a sum of Rs. 2,50,862/- and refund the excess amount to the complainants.
(ii) provide a specific parking space to the complainant from the approved area as per the layout plan.
(iii) the late delivery possession charges from 1.12.2014 to 2.6.2015 @ Rs. 5/- per sq. ft. of super area on 1852 sq. ft. alongwith interest @ 9% p.a. from 2.6.2015 to the date of payment.
(iv) provide intercom facility to the flat of the complainant with security guard room and DTH facility to the flat of the complainant.
Consumer Complaint No. 355 of 2016 25
(v) complete the club house within a period of 6 months from the date of passing of the order and make it functional, otherwise Ops will pay penal charges to the complainant @ Rs. 3,000/- per month.
(vi) remove the unauthorized sheds in the open/street area being not approved in the layout.
(viii) pay Rs. 30,000/- as compensation for mental agony and harassment etc.; and
(ix) Rs. 21,000/- as litigation expenses.
The above directions be complied by the Ops within a period of 45 days from the date of receiving of the copy of the order, failing which the complainant shall be at liberty to execute the order by filing application under Sections 25 & 27 of the CP Act against the Ops.
23. The consumer complaint could not be decided within the statutory period due to heavy pendency of Court cases.
24. Order be communicated to the parties as per rules.
(GURCHARAN SINGH SARAN) PRESIDING JUDICIAL MEMBER (RAJINDER KUMAR GOYAL) MEMBER December 19, 2017.
as