National Consumer Disputes Redressal
Rajiv Marwah & Anr. vs Eldeco Infrastructure & Properties ... on 23 August, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 180 OF 2010 1. RAJIV MARWAH & ANR. R/o B-6/48, Safdarjung Enclave New Delhi - 110 029 ...........Complainant(s) Versus 1. ELDECO INFRASTRUCTURE & PROPERTIES LTD. Through Mr. Pankaj Bajaj, M.D.,
201-212, Splendor Forum,
2nd Floor,
Jasola District Center,
Jasola New Delhi - 110 025 ...........Opp.Party(s)
BEFORE: HON'BLE MR. PREM NARAIN,PRESIDING MEMBER
For the Complainant : Mr. Rajiv Bahl, Advocate For the Opp.Party : Mr. H.K. Jaggi, Advocate with
Mr. Deepak Sharma, Advocate
Dated : 23 Aug 2018 ORDER
This consumer complaint has been filed by the complainants Mr. Rajiv Marwah and another against the OP, ELDECO Infrastructure & Properties Ltd. The facts relating to the present complaint are that in June, 2004 the opposite party launched the project called "The Klasse" through invitation and the complainants were the first applicants to book the first flat No.KL1-001 by paying booking amount on 25th June, 2004. On 18.11.2004 the allotment certificate and agreement was executed between the parties with down payment plan Plan-B and under the said plan the opposite party was under the obligation to handover the possession of the unit after 28 months of the receipt of the entire basic price of the unit. On 3.12.2004 in terms of the agreement the entire payment of the basic price of the unit was paid even before the due date mentioned in the agreement. In March, 2007 in terms of the agreement dated 18.11.2004 the opposite party should have completed the entire construction and should have handed over the possession of the unit complete in all respects with all ancillary facilities to the complainant. However, the opposite party failed to complete the project and the building is still incomplete. Between May, 2008 to September, 2009 the complainants have written several letters informing the opposite party of the state of construction of the project, which was incomplete and for adjustment of the claim for compensation for delayed construction and handing over the possession. In spite of fact that the project was incomplete and the remaining work required more than 5-6 months, the opposite party raised unwarranted, arbitrary, illegal and misconceived final demand vide letters dated 24.10.2008 and 21.1.2009. In the final demand letter dated 21.1.2009, the opposite party admitted the delay in construction and delivery of possession. The complainant got issued legal notice dated 23.11.2009 through his lawyer after failure of the opposite party to give a probable date of completion and handing over possession. The said legal notice was duly served upon the opposite party. However, no reply was sent to the aforesaid legal notice. To counter the legal notice dated 23.11.2009 and further in order to harass the complainants, the OP illegally claimed charges i.e. holding charges, maintenance charges, interest on various subsequent amounts raised without sanction of law or agreement and without handing over the possession of the flat.
2. In this background, the complaint has been filed with the following prayers:
"In view of the submissions contained in the preceding paragraphs, the complainant most respectfully prays that the Hon'ble President and Members of the Commission be pleased to direct the opposite party to:
pay Rs.7.5 lac to the complainant as compensation for mental tension, agony harassment, loss of enjoyment of flat/loss of rental etc. by denial/delay in construction and handing over the possession of the flat as per the agreement with interest @ 18% p.a.
Immediately hand over the possession of the flat No. KL1-001 ELDECO KLASSE, SECTOR -93, NOIDA complete in all respect as per the agreement with all infrastructure in place, so that complainant could live with his family and enjoy all amenities associated with the flat.
also to pay simple interest @ 18% per annum on the paid up amount of Rs.98,79,790/- for the delayed period w.e.f. March, 2007 upto date amounting to approximately Rs.63,00,000/- (Rupees Sixty Three Lacs only) and for future interest at the same rate till the OP hands over the actual possession on the said flat.
that respondent/OP be directed not to charge holding charges, maintenance charges, interest on various subsequent amount as is now being illegally claimed by the opposite party and
pay the complainant a sum of Rs.1,00,000/- (Rupees One lacs only) towards the costs of this petition and any other orders deemed necessary.
3. The complaint was resisted by the OP by filing the written statement. It has been stated that the complainants are avoiding taking the possession to get more interest amount in the matter. There was some amount outstanding against the complainants and without realizing the total amount, the possession could not have been given. On this assertion, it has been requested to dismiss the complaint.
4. Both the parties filed their evidence by way of affidavits in the matter.
5. Heard the learned counsel for both the parties and perused the record.
6 . Learned counsel for the complainants stated that against the total consideration of Rs.94,02,290/- the complainants have paid Rs.98,79,790/- including upfront discount @ 7.5%. According to the builder buyer agreement dated 18.11.2004, the OP should have completed the entire construction and handed over the possession of the unit in question complete in all respects by March, 2007. As the possession was not given even by 2010, the present complaint was filed. During the pendency of the complaint case, vide order dated 6.5.2011 OP was directed to handover the possession complete in all respects to the complainants within a period of 30 days subject to complainants paying Rs.10 lakhs to the OP. The complainants paid Rs.10 lakhs to the OP on 31.5.2011 but the possession was actually handed over to the complainants on 26.11.2011. Thus, assertion of the OP that an offer letter of possession alongwith final demand was sent on 24.10.2008 is not substantiated because even after the order of this Commission to give possession within 30 days, the OP has taken roughly six months to actually handover the possession. This clearly means that when the offer of possession alongwith demand letter was sent on 24.10.2008, there was no question of the building being ready at that time. The learned counsel for the complainants stated that the complainants must be compensated for the delayed handing over of the possession and interest @ 18% p.a. on the deposited amount from the due date of possession till the date of actual possession be granted to the complainants.
7. On the other hand, the learned counsel for the OP stated that the actual possession could not be handed over to the complainants as they had not paid the demand raised by the OP. In fact, the OP had sent the demand notice-cum-offer letter of possession on 24.10.2008 wherein a demand of Rs.15,33,537/- was sent. Further, the learned counsel for the OP stated that an amount of Rs.91,74,619/- has only been paid by the complainant including three lakhs for storage facilities. The complainants had sent various letters dated 3.11.2008, 14.11.2008 and 16.3.2009 whereby the complainants have raised questions about the slow pace of construction. However, nothing has been said in these letters about the shortcomings in the flat in question. All these letters were written by the complainants after inspecting the progress on site and that time the flat was ready. Thus, the question of shortcomings in the flat cannot be raised now, as this is just a ploy to delay the taking over of the possession so that the complainants may earn more interest awarded by the consumer forum. All the items mentioned in the demand letter dated 24.10.2008 are as per the agreement and all amounts are payable by the complainants. Learned counsel for the OP further stated that after negotiations with the complainants, revised demand letter dated 21.1.2009 was sent and the final demand of Rs.12,14,222/- was sent wherein pre-payment discount of Rs.50,815/- and penalty for delay in possession charges of Rs.2,68,500/- were deducted from Rs.15,33,537/- earlier demanded by the OP vide letter dated 24.10.2008. It was further stated by the learned counsel that the complainants did not pay any amount, then the OP withdrew the concessions made by sending various demand letters i.e on 12.12.2009 for Rs.22,39,858/-, on 4.2.2010 for Rs.23,10,367/- and on 7.6.2010 for Rs.25,76,658/-. When the complainants did not come forward to take possession and to pay balance amount, the OP finally on 7.8.2010 wrote to the complainants clearly stating that possession of the unit cannot be delayed as the contractors for this project have already demobilized their machinery and manpower and it will not be possible once again to remobilize them as and when complainants decide to take possession of their unit. Accordingly, again the complainants were requested to take the possession on as is where is basis and accordingly, the demand was also raised for Rs.17,58,702/-. The learned counsel further stated that when this Commission on 6.5.2011 ordered the delivery of possession to the complainants, it was stated before this Commission that an amount of Rs.17,58,702/- was due against the complainants. In fact, if the amount of interest is added this figure would have been slightly more. However, the figure was mentioned before this Commission as communicated to the complainants vide letter dated 7.8.2010. Though an amount of Rs.10 lakhs has been paid by the complainants still Rs.7,58,702/- remained due on the complainants and the complainants be directed to pay this amount alongwith interest as per the agreement.
8. The learned counsel for the OP further argued that the building was ready and possession was also offered as would be clear from the above narrated facts but the possession was not taken by the complainants. Hence, the OP is entitled to recover the holding charges as per the agreement.
9. It was further argued by the learned counsel for the OP that as per clause 31 of the agreement, the complainants cannot have any claim after taking over the possession. The clause 31 reads as under:
"31. THAT the allottee after taking possession of the unit, shall have no claim against the company in respect of any item of work in the unit, which may be said not to have been carried out or for non-compliance of any designs, specifications, building material or any other reason whatsoever."
10. The learned counsel argued that the agreement is binding on both the parties and therefore as per this clause, the complainants are not entitled to any amount from the OP.
11. I have given a thoughtful consideration to the arguments advanced by learned counsel for both the parties and examined the material on record.
12. Coming first to the argument of the learned counsel for the OP that the complainants are not entitled to any claim as per clause 31 of the agreement, it is felt that clause 31 is not based on principle of equity and it makes the agreement void under Section 28 of the Indian Contract Act. It also reflects the predominant position of the OP in the agreement. The Consumer Protection Act, 1986 is meant for better protection of interests of the consumers and therefore, the provision of clause 31 in the agreement cannot be accepted for adjudicating the present complaint.
13. As the possession has already been given in the present case, the only question remains to be decided is about compensation to be paid to the complainants for delayed possession.
14. The OP vide its demand letter dated 7.8.2010 had finally raised a demand of Rs.17,58,702/-. A perusal of this letter reveals that an amount of Rs.3,58,000/- has been demanded as holding charges. Coming to the question of holding charges, it is seen that this Commission vide its order dated 6.5.2011 ordered the OP to handover the possession within a period of 30 days. Possession was delivered on 26.11.2011. In this regard, I find force in the contention of the learned counsel for the complainants that the building was incomplete and there were lot of works left to be completed before handing over the possession and that is why the OP has taken roughly six months to handover the possession even after the order passed by this Commission. Thus, the contention of the OP cannot be accepted that the building was complete and the possession was offered in the year 2008. Even the alleged letter for offer of possession dated 24.10.2008 mentioned as follows:
'We are pleased to inform that the above-mentioned unit is nearing completion."
15. From the above it is clear that this was basically a demand letter and as the building was only near the completion, the possession could not have been offered. Thus, offer of possession-cum-demand letter dated 24.10.2008 was only to satisfy the anxiety of the allottees in respect of the progress of the construction. In these circumstances, the OP is not entitled to charge any holding charges from the complainants. Thus, the amount of Rs.3,58,000/- as holding charges does not become payable out of the demand of Rs.17,58,702/- raised vide letter dated 7.8.2010. Thus, an amount of Rs.14,00,702/- (Rs. Rs.17,58,702/- - Rs.3,58,000/-) should be considered as the final demand on 7.8.2010. In pursuance of the order dated 6.5.2011, Rs.10 lakhs has been paid by the complainants on 31.5.2011. As per the agreement, OP is entitled to charge interest @ 18% p.a. on this amount of Rs.14,00,702/- from 7.8.2010 to 31.5.2011 and this interest comes to Rs.2,03,773/-. Thus, the final figure which is payable by the complainants to the OP would be Rs.16,04,475/- as on 31.5.2011. The complainants had paid Rs.10,00,000/- on 31.5.2011, therefore, the net amount pending for payment by the complainants to the OP as on 31.5.2011 would be Rs.6,04,475/- only. This payment would become Rs.6,66,479/- on 26.11.2011 ( the date of actual possession).
16. Now the actual deposit of the complainants before the date of due possession is Rs.88,74,619/-. The possession was due in March, 2007. The actual possession has been given on 26.11.2011. Thus, clearly there is a delay of 4 years 7 months and 26 days in handing over the possession. The complainants have demanded interest @ 18% p.a. on the paid amount from the due date of possession. Hon'ble Supreme Court in Ghaziabad Development Authority Vs. Balbir Singh , reported in 2004 (5) SCC, 65 decided on 17.3.2004, has held that a person who gets possession with delay is not entitled to interest @ 18% p.a. on the deposited amount as he gets the appreciated value of the house. There is no agreement for paying of interest between the parties for delay in possession. Keeping in view the current interest scenario and the bank interest rates, this Commission has recently allowed 5% to 6% p.a. interest on the deposited amount in cases where possession has been ordered. The following cases are mentioned to illustrate the point.
R V Prasannakumaar and others vs. Mantri Castles Pvt. Ltd. and another, CC No.913 of 2016 decided on 8.6.2018 by this Commission; and
ii) Chief Executive Officer, Sahara Prime City Ltd. and another Vs. K.K. Ramasamy and others, R.P. No.2681-2683 of 2013, decided on 28.8.2015 by this Commission."
17. Thus, following the current trend, I deem it appropriate to allow 6% p.a. interest to be paid to the complainants on the amount deposited with the OP from 1.4.2007 till 26.11.2011. This amount comes to approximately Rs.24,77,112/-. As Rs.6,66,479/- was due on the complainants the net amount that the OP is liable to pay as compensation would be only Rs.18,10,633/-. As this amount is of compensation, in the facts and circumstances of the case, I am not allowing any further interest on this amount as this compensation is being decided now.
18. Based on the above discussion, the complaint is allowed and OP is directed to pay Rs.18,10,633/- to the complainants within a period of 45 days, failing which OP shall also be liable to pay interest on this amount @ 6% p.a. from the date of this order till actual payment. OP shall also pay a cost of Rs.10,000/- as cost of litigation.
...................... PREM NARAIN PRESIDING MEMBER