State Consumer Disputes Redressal Commission
Smt. Vimlesh Verma vs Gda on 7 October, 2024
Daily Order M. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BHOPAL PLOT NO.76, ARERA HILLS, BHOPAL CONSUMER COMPLAINT NO. 61 OF 2015 FILED ON 19.10.2015 DECIDED ON 07.10.2024 SMT. VIMLESH VERMA W/O DR. S. S. VERMA, R/O GAYATRI VIHAR, NEAR GAYATRI MANDIR, PINTO PARK-II, MORAR, GWALIOR (M.P.) ... COMPLAINANT. VERSUS GWALIOR DEVELOPMENT AUTHORITY, THROUGH ITS CHIEF EXECUTIVE OFFICER, VIKAS BHAWAN, 1, RAVI NAGAR, GWALIOR (M.P.) ... OPPOSITE PARTY BEFORE : HON'BLE SHRI A. K. TIWARI : ACTING PRESIDENT HON'BLE DR. SRIKANT PANDEY : MEMBER COUNSEL FOR PARTIES: Complainant through her husband S. S. Verma. Shri Ravi Jain, learned counsel for the opposite party. O R D E R
(Passed On 07.10.2024) The following order of the Commission was delivered by A. K. Tiwari, Acting President:
This complaint has been filed under Section 17 of the Consumer Protection Act, 1986 (for short 'Act').
2. Brief facts of the case as stated by the complainant are that the opposite party-Gwalior Development Authority (GDA) issued an advertisement regarding development of a project namely 'Bhau Sahib -2- Potnis Enclave' behind MITS, Gwalior (hereinafter referred to as Enclave) in the year 2013 for construction, development and allotment of flats. The advertisement stated that after paying Rs.1,000/- to the Bank of Baroda, the brochure, prospectus, and application form can be obtained. It is submitted by the complainant that the brochure emphasized closed campus, lifts, covered parking, playground and park in the premises of the enclave, security-suvidha, and distance from railway station as 1.5 km. On 14th March 2013, the initial registration of the flats commenced whereby the flats were allotted on the basis of lottery system and as per terms and conditions of the initial registration, the allottees were required to deposit 10% of the value/amount of the flats and the remaining amount of the decided value/amount of the flats to be deposited in 6 periodic installments. It is further submitted that at the time of inaugural ceremony of announcement of the scheme i.e. 17th April, 2013, Chief Executive Officer and Chairman of GDA made a declaration that the entire work of the enclave will be completed within a period of 18 months.
3. Being influenced by the scheme, the complainant applied for a 3BHK flat. The opposite party by a letter communicated the complainant that a 3BHK flat will cost Rs.31,50,000/-. A letter of allotment outlining the method and manner of deposit of installments was issued to the complainant wherein it was stated that the last installment of the aforesaid -3- amount should be deposited by 15th August 2014. Copy of scheduled letter no.2013/2738 dated 26.03.2013 is annexed as Annexure A-3. It is submitted by the complainant that till 15.08.2014 she had deposited Rs.31,50,000/- including registration amount and the copies of challans are annexed as Annexure A-4. Further a tripartite agreement dated 27.11.2013 was executed between the complainant, the opposite party GDA and the State Bank of India, whereby it is made clear that the bank is providing housing loan to the complainant for the purpose of allotment of flat by GDA under its project. Copy of tripartite agreement dated 27.11.2013 is Annexure A-5.
4. It is alleged by the complainant that 18 months period for completion of project expired in September-2014 beginning from March-2013 but even after depositing all the 6 installments within stipulated time period (August-2014) the completion of the project was nowhere in sight. On 12th February 2015 the GDA allotted the flat numbers to various applicants by adopting lottery process and the complainant was allotted flat no. B-503. Even at this point of time, there seemed to be no likelihood of the project being completed within a definite time frame. The GDA vide letter no. 2015/1002 dated 20.02.2015 (A-6) communicated to the complainant, to her surprise and utter dismay that she is required to pay the revised rates for allotted flat. The prices were revised and increased -4- arbitrarily and unjustly, by increasing the cost of the flat by Rs.1,50,000/-, lease rent Rs.3,300/-, stationery charges Rs.200/-, service charges Rs.330/- and interest on installments Rs.2,589/-. It is further submitted by the complainant that the complainant was constrained to meet the demands on dotted lines as required by the GDA and thus submitted an objection letter under protest on 09.03.2015. In addition to depositing the aforesaid amount under protest, the complainant also sought information regarding building material, cost of construction etc. as a justification for the revised amount. Representation dated 09.03.2015 & 25.03.2015 (depositing revised amount under protest) is annexed as Annexure A-7.
5. Further the GDA vide letter no. BSP/estate/2015/2462 dated 08.07.2015, informed the complainant that she has to deposit further sum of Rs.39,200/- as maintenance charges for 3 months Rs.4,200/- @ Rs.1400/- per month and Rs.35,000/- for yearly campus maintenance charges on or before 21 July 2015. The said letter is annexed as Annexure A-8. The complainant disturbed and exasperated by the indifference of the officials of the opposite towards the plight of the complainant and other allottees did not deposit the amount as requested. The complainant with other allottees preferred a representation dated 27.07.2015 before the officials of the opposite party agitating their grievances with respect to inordinate delay in completion of the project as well as unjust and unfair -5- demands raised by the officials of the opposite party time and again but of no avail. Thereafter another representation dated 10.09.2015 was given but no heed was paid.
6. Eventually on 19th September 2015 DB Star, a supplement to Hindi Newspaper 'Dainik Bhaskar' published a news report wherein the PRO of GDA stated that no play ground is there in the project namely 'Bhau Sahab Potnis Enclave' Phase-1. To confirm the aforesaid fact, the complainant during her personal visit found that there is no space and provision for a park and playground within the enclave premises whereas in the brochure it has been specifically mentioned that there will be park and playground in the premises. Thereafter vide notice dated 28th September 2015, the complainant and other allottees sought refund of the amount deposited by them with the opposite party with interest on account of cheating, unfair trade practice and delay in possession.
7. It is alleged by the complainant that the opposite party-GDA ought to have fulfilled the promises and representations made in the brochure and by not providing playground and park they have committed deficiency in service. Also the opposite party has committed deficiency in service in charging excess amount by way of increase in price, lease rent, maintenance charges, etc over and above the price mentioned in the brochure without any reasonable justification and explanation which -6- amounts to exploitation of the complainant especially when the complainant has deposited the entire amount as demanded within the stipulated period of time. It is submitted that these practices of the opposite party are done with the motive of profit mongering and has caused immense trauma and harassment to the complainant.
8. After seeking permission from this Commission, the complainant amended the complainant on 28.07.2023 and has stated that the opposite party without waiting the decision of Hon'ble Commission sold/leased out the flat no. B-503 to other person. The complainant has paid the full and final amount of Rs.33,06,419/-. It is submitted that pending adjudication of the matter the opposite party-GDA re-sold the flat B-503 for Rs.41,79,000/- therefore earned more benefits of Rs.8,79,000/- (41,79,000-33,00,000=8,79,000).
9. The complainant therefore alleging deficiency in service on part of opposite party-GDA has filed the present complaint seeking refund of entire price deposited by her i.e. Rs.33,06,0419/- with interest @ 18% p.a. to be calculated from the date of different deposits. Rs.50,000/- as compensation for deficiency in service and unfair trade practice and Rs.20,000/- as costs. Also by amending the complaint, the complainant sought the earn profit margin of Rs.8,79,000/- which have been collected by the GDA by re-selling the disputed flat to someone else. The -7- complainant has filed her affidavit and documents A-1 to A-18. Though there is mention that A-19 is original copy of challans but the said copies are not available on record.
10. The opposite party has filed reply wherein they have admitted certain facts and declined certain facts. It is admitted that GDA offered two kinds of flats and emphasized that it is a closed campus, lift, covered parking, playground, park and also the security service is available in the premises but it is denied that it was emphasis that the distance of campus from the Railway Station is only 1.5km. It is also denied that Annexure A-2 was published by GDA, it is submitted that the A-2 is a forged document made by some process by the complainant herself which is clear from the A-1 filed by the complainant herself on which distance from Railway Station is stated as 3KM and actually the distance from Railway Station is near about 3KM which is stated on Annexure A-1. Therefore, it is clear that the complainant has not come with clean hands.
11. It is submitted that at the time of inaugural ceremony held on 17.04.2013, no dignity has announced about completion of work within stipulated time period. In the conditions enclosed with the application form, condition no.7 clearly stated that the lease deed will be executed only after completion of building and at condition no.10 it was stated that possession -8- will be given only after depositing the complete amount as demanded by GDA and also after execution of lease deed. It is also submitted that the complainant did not deposit the installments in the stipulated time period for which the complainant has to pay the interest in accordance with the rules and conditions of GDA for which letter was issued to the complainant but she did not deposit all the installments and interest amount, therefore, her allotment for the concerned flat was supposed to be cancelled but the GDA itself did not cancel the allotment and gave a notice no.2015/1002 dated 20.02.2015 (A-6) to deposit installments with interest and the GDA cancelled the provisional allotment only after application for cancelation of allotment filed by the complainant herself.
12. It is submitted that allotment for 3BHK flat was registered for the complainant but the cost of the flat was written as provisional and not actual. It was also stated in the conditions annexed with the form in condition no.18 that the cost/rate is only provisional cost and the actual cost will be decided after completion of work and difference amount shall be payable before execution of agreement by the allottee. It is also mention in Annexure A-3 in condition no.2, that the actual cost shall be decided after completion of work and also in condition no.7 it is stated that the cost of maintenance of the campus and parking cost would be decided -9- by the GDA and that also to be borne by the allottee himself/herself separately.
13. It is submitted that the chart given by the complainant is admitted but from the chart itself, it is clear that the complainant did not deposit third and fourth installments in the stipulated time period which is evident from copies of challan filed by the complainant and for which the letter was issued to the complainant to deposit difference of actual cost, remaining installment, lease rent of 1 year, stationery charge, service charge and interest on 20.02.2015 which is annexed by the complainant as A-6. It is submitted that such a big project takes time for its completion because of so many hurdles comes in the way, therefore, in the regulations and conditions it was made clear that the possession would be given only after completion of work. It is admitted that the opposite party sent a letter A-6 dated 20.02.2015 as after completion cost was higher than the provisional cost as the complainant was apprised of this fact vide conditions attached to the application form as well as vide Annexure A-3 that actual cost would be payable before executing the lease deed.
14. It is admitted that the complainant filed an application A-7 on 09.03.2015 and 25.03.2015 but it is to mention here that the complainant was asked to deposit remaining amount by letter dated 20.02.2015 (A-6) and thereafter she deposited the amount. It is also admitted that letter -10- dated 08.07.2015 (Annexure A-8) was sent to the complainant in accordance with the rules and conditions which were proper but the complainant did not comply with the conditions. Again on 30.09.2015 the opposite party GDA sent a detailed reminder of demand note for maintenance to the complainant which is annexed as R-1.
15. It is submitted that Hon'ble Supreme Court in Civil Appeal No.2853 of 2015 (Arising out of SLP (C) No.7300 of 2012 (GDA & Ors Vs Krishna Grih Nirman Sahakari Sanstha) that if a person did not deposit the amount due in the stipulated time period then interest will be charged in accordance with the rules and also the compound interest be payable on the interest which become due for a stipulated time period. Copy of order is annexed as R-2. It is submitted that the GDA have to look after the maintenance of common area up till the possession of all the flats has not been taken over by its concerning allottees and residents' welfare association is not formed. It is submitted that there is provision of playground and park in the enclave therefore the allegation that there is no playground and park is denied. It is submitted that no extra amount is charged, the actual price, lease rent, maintenance charge all are specified in the terms and conditions and the amount shown in the advertisement was approximate and provisional amount and it was mentioned that actual amount has to be paid before lease deed.
-11-16. Since the complainant has given notice for cancellation of allotment, therefore, the allotment to the complainant has already been cancelled vide order dated 17.11.2015. A copy of order dated 17.11.2015 is already annexed by the complainant as Annexure A-14. It is therefore submitted that the complainant is not eligible for any relief as claimed and the complaint of the complainant deserves to be dismissed with costs. The opposite party GDA has filed affidavit of Ramniwas Sikarwar, Sampada Adhikari, GDA along with documents marked as R-1 and R-2, X, Y and Z.
17. We have heard complainant who is represented by her husband and learned counsel for the opposite party and perused the record.
18. Complainant who was represented by her husband has reiterated the same facts as have been stated in the complaint that on different dates she had paid Rs.33,06,419/- including booking amount towards the flat in question. He argued that despite making payment there is no action on the part of the opposite party-GDA to construct and deliver the possession of the constructed flat whereas as per their assurance, they had to deliver the possession of the flat within 18 months from the date of registration but there was no progress in construction of the flats. The complainant and other allottees preferred representation on -12- 27.07.2015 agitating their grievances with respect to inordinate delay in completion of the project as well as unjust and unfair demands time and again but of no avail and therefore the complainant submitted another objection letter dated 10.09.2015 but no heed was paid. He argued that the brochure clearly indicates features/specialties such as closed campus, covered parking, playground and park in the premises, security-suvidha and distance from railway station as 1.5 km, however, the reality is far from the promises and representations made in the brochure. He argued that the opposite party-GDA has committed deficiency in service in charging excess amount, by way of increase in price, lease rent, maintenance charges etc. over and above the price mentioned in the brochure without any reasonable justification and explanation amounts to exploitation of the complainant.
19. He further argued that in the reply the opposite party-GDA has admitted that there is playground and park facility however, in the information sought by the complainant under RTI, the GDA has specifically stated that there is no provision for playground. He argued that in reply it is submitted that there is a covered parking which is contradictory to their letter wherein it is stated that parking space shall vest in the opposite party, who has the right to use it as and when required and the complainant cannot even raise objections against it. He argued that the -13- admission of the opposite party in reply to the complaint with their denial of the contents of the information received under RTI clearly establishes the misrepresentation, misleading advertisement and unfair trade practice on part of the opposite party-GDA. He argued that the opposite party has alleged that the Annexure A-2 is a forged document made by some process by the complainant herself and the complainant has not come before the Hon'ble Commission with clean hands is denied as the complainant is well aware of the fact that furnishing a forged document on affidavit as well as making false statement on affidavit before a Court of Law is a punishable offence.
20. He argued that the complainant for the reasons of inordinate and inexplicable delay in delivery of possession of flats coupled with blatant unfair trade practices, misrepresentations, cheating and false promises, the complainant sought refund of entire amount deposited with interest @ 18% p.a., compensation of Rs.2,00,000/- with costs of Rs.20,000/-. He argued that during sub-judice of the matter before the State Commission, the opposite party-GDA sold the subject flat for Rs.41,79,000/- and therefore earned more profit of Rs.8,79,000/- (41,79,000-33,00,000=8,79,000). He argued that the earned amount of Rs.8,79,000/- must be refunded to the complainant as the opposite party-GDA cannot be allowed to retain profit margin when the case was pending -14- for adjudication before this Commission. He relied upon a judgment of Hon'ble M. P. High Court dated 22.08.2022 passed in First Appeal No. 584 of 2021 wherein in para 37, Hon'ble High Court has held that "Under this circumstances, the provisions of Section 52 of the Transfer of Property Act is fully applicable and in such circumstances, the property in question sold by the respondent no.1 to the respondent nos. 2 & 3 registered on 04.10.2010 is itself void, ineffective and also against the interest and right of the appellant." He argued that the opposite parties have committed gross deficiency in service and unfair trade practice. He therefore prayed that the complaint be allowed.
21. On the other hand, learned counsel for the opposite parties argued that the complainant has voluntarily accepted the offer and registered herself to purchase a flat after fulfilling the application form. In condition no.7 of the application form, it is clearly mentioned that lease deed will be executed only after completion of building as also in condition no.10 it is specified that possession will be given only after depositing the complete amount as demanded by the GDA and after execution of lease deed. He argued that the complainant has not deposited the installment in the stipulated time period for which the complainant has to pay the interest as per rules and conditions of the GDA for which letter was issued to the complainant but she did not deposit all the installments and interest -15- amount and therefore her allotment for the flat was supposed to be cancelled by the GDA itself but did not cancel the allotment and gave a notice to the complainant dated 20.02.2015 (A-6) to deposit the installments with interest and thereafter the GDA cancelled the provisional allotment only after application for cancellation of allotment of flat filed by the complainant herself. He argued that in the conditions annexed with application form, in condition no.18 it is clearly mentioned that the cost of the flat is only provisional cost and actual cost will be decided only after completion of work and difference amount shall be payable before execution of agreement by the allottee. Also in condition no.7 it is stated that the cost of maintenance of the campus and parking cost would be decided by the GDA and that also to be borne by the allottee herself separately.
22. He argued that the complainant has not deposited the entire amount (including the actual amount and interest within stipulated time period). He placed reliance on the decision of Hon'ble Supreme Court in Civil Appeal No.2853 of 2015 arising out of SLP (C) No.7300 of 2012 vide order dated 13.03.2015 that if a person did not deposit the amount due in stipulated time period then interest will be charged in accordance with the rules and also the compound interest be payable on the interest which become due for a stipulated time period. He argued that there was no -16- misleading advertisement and false representation. He argued that the facilities as promised are available in the premises. No excess amount is charged from the complainant, the actual price, lease rent, maintenance charges specified in the advertisement was approximate and provisional amount and it has been clearly mentioned that actual amount has to be paid before lease deed.
23. He argued that on the request of cancellation of allotment of flat dated 28.09.2015 by the complainant the allotment was cancelled on 17.11.2015 and as per tripartite agreement executed between the complainant, GDA and the bank, the GDA returned the said amount to the bank after deducting 10% of the amount as per rules. Later 10% deducted amount was also deposited with the bank and the State Commission made a direction that the said 10% amount will be refundable to the GDA after decision of the case and till then, the bank kept that much amount in safe custody and only after order of this Commission will pay to the party to whom this Commission is directed. He argued that the complainant is also not entitled to get the amount of Rs.8,79,000/- by selling the questioned flat to another one. He argued that no deficiency in service or unfair trade practice has been committed by the opposite party-GDA and thus the complaint deserves to be dismissed with costs.
-17-24. After hearing learned counsel for the parties and on going through the complaint, documents, reply of opposite parties, affidavits, written arguments filed by the complainant and other evidentiary material on record we find that the complainant had booked flat in the scheme namely 'Bhau Sahib Potnis Enclave' launched by the opposite party-GDA in Gwalior. The complainant alleged deficiency in service, unfair trade practice in not providing facilities as assured as also in not completing the project in prescribed time limit and not giving the facilities as assured, therefore the complainant compelled to issue notice dated 28.09.2015 to the GDA seeking cancellation of allotment of flat and refund of amount deposited by her with interest @ 18% p.a. The complainant's request for cancellation of allotment of flat was accepted by the GDA and vide letter dated 17.11.2015 to the complainant informed her that in response to her demand the allotment order was cancelled. It was also informed that on presenting the original copies of Challan deposited amount shall be refunded to her as per rules. During the course of hearing, learned counsel for the complainant has moved an application seeking interim stay on the letter of cancellation of allotment of flat till final disposal of the complaint. This Commission after hearing parties vide order dated 27.01.2016 opined that in view of the letter dated 17.11.2015 issued by the GDA accepting the request made by the complainant for cancellation of her allotment, no -18- stay order can be passed especially in view of the fact that operation of the cancellation order has already been taken effect. Thereafter this Commission has held that the question remained for disposal of this complaint before this Commission is only about the amount to be refunded to complainant and if any interest is to be paid.
25. Thus the question for disposal of this complaint remained for our consideration in this complaint is:
1) Whether the amount to be refunded to the complainant and if any interest is to be paid on it?
26. From the record, we find that it is an admitted fact that the complainant had booked a 3 BHK flat in the Bhau Sahib Potnis Enclave, Gwalior, project launched by the opposite party GDA. The cost of the flat was shown as Rs.31,50,000/- which was to be paid in 6 installments of Rs.5,25,000/- each and the last installment was to be paid till 15.08.2014. The complainant was allotted flat no. B-503. It is alleged by the complainant that the opposite party-GDA vide letter dated 20.02.2015 (A-6) informed the complainant and made a demand that the cost of the flat was increased by Rs.1,50,000/-, lease rent charge Rs.3,300/- and interest on installments Rs.2,589/-. Thus the complainant had deposited total amount of Rs.33,06,419/- in total instead of Rs.31,50,000/- as total cost of the flat as per advertisement. Here it is pertinent to mention that in -19- condition no.7 of the application form, it is clearly mentioned that lease deed will be executed only after completion of building as also in condition no.10 it is specified that possession will be given only after depositing the complete amount as demanded by the GDA and after execution of lease deed. Also, in condition no.18 it is clearly mentioned that the cost of the flat is only provisional cost and actual cost will be decided only after completion of work and difference amount shall be payable before execution of agreement by the allottee. Also in condition no.8 it is stated that the cost of maintenance of the campus and parking cost would be decided by the GDA and that also to be bear by the allottee herself separately. Since the complainant did not deposit the installments in stipulated time period for which the complainant had to pay the interest as per rules and conditions of the GDA and therefore GDA has issued letter A-6 to deposit the installments and interest amount. Therefore, the allegation of the complainant that the opposite party-GDA made demand of increased price and other charges has not been accepted as the complainant herself defaulted in making payment of installments within stipulated time period. Even otherwise, the dispute regarding escalation of price is not maintainable before the Commissions constituted under the Consumer Protection Act.
-20-27. The complainant on 28.09.2015 had applied for cancellation of allotment of flat and thereafter filed complaint on 19.10.2015. Thereafter, the complainant's request for cancellation of allotment of flat was accepted by the GDA and vide letter dated 17.11.2015 to the complainant informed her that in response to her request the allotment order was cancelled. It was also informed that on presenting the original copies of challan deposited amount shall be refunded to her as per rules. During the course of pendency of complaint, the opposite party-GDA as per tripartite agreement between the complainant, GDA and the bank, refunded the cost of the flat as deposited by the complainant to the bank after deducting 10% of the amount as per rules. Later on the direction of this Commission, the GDA deposited the remaining 10% amount, however, this Commission directed the bank not to disburse the said amount to any of the parties till final disposal and only after directions of this Commission.
28. Since the complainant herself made a request for cancellation of allotment of flat and consequently the GDA cancelled the allotment, therefore, there is no question of not providing facilities as alleged to be provided by the GDA. But at the same time as discussed above, the complainant is also at fault and she did not pay the installments in time. The opposite party-GDA is a body who work on any project at different stages as and when they received the amount from the different allottees -21- and if all of them are at default in making payment of installments in time, delay in construction of flats must have occurred.
29. The complainant has filed certain documents obtained by her under RTI from the opposite party GDA. On perusal of those documents, we find that the completion certificate with regard to the aforesaid project had already been issued on 22.05.2015. Also from the letter no.GDA/2015/3167 dated 11.08.2015 of Executive Engineer, Division No.3, GDA addressed to Estate Officer, GDA it is clear that the construction work of flats under the scheme Bhau Sahib Potnis Phase 1 had already been completed and the flats were ready for possession. Thus we find that the complainant's allegation that there was no progress in construction work cannot be accepted more particularly when the construction was completed in May-2015 and the flats were ready for possession in the month of August-2015.
30. It is also pertinent to mention here that in the complaint the complainant has alleged cheating, the cases related to cheating are outside the purview of the Consumer Protection Act.
31. Be that as it may. However, since this Act is beneficiary for consumer, and since this Commission restricted the issue only with regard to whether the amount to be refunded to the complainant and if any interest is to be paid on it? Thus, in our considered view, the complainant -22- is entitled to get back the amount deposited by her i.e. Rs.33,06,419/- with the opposite party towards questioned flat with interest from the date of filing of complaint till the date of payment. Since the amount deposited by the complainant towards the flat had already been refunded by the GDA to the bank as per tripartite agreement, the complainant is entitled to only interest on the said amount from the date of filing of complaint till the date of refund of the amount.
32. So far as the claim of the complainant that the opposite party-GDA sold the questioned flat with profit of Rs.8,79,000/- and therefore she is entitled to get Rs.8,79,000/- is concerned, we find that once the complainant herself made a request to cancel the allotment of flat and the GDA cancelled the allotment of flat, therefore, the complainant is not entitled to get any benefit with regard to further sale of questioned flat.
33. In view of the above discussion considering the facts and circumstances of the matter, the consumer complaint is partly allowed and the opposite party-GDA is directed:
1) To pay interest @ 6% p.a. on the amount of Rs. 33,06,419/- deposited by the complainant with them from the date of filing of complaint till the date of refund of the amount of Rs.33,06,419/- within two months from the date of this order to the complainant.-23-
2) To pay Rs.5,000/- as costs of litigation to the complainant within a period of two months.
3) FDR so deposited with this Commission be returned to the complainant in terms of the order dated 06.10.2016 passed by Hon'ble National Commission in Revision Petitions No.2918-2924 of 2016.
All the interlocutory applications if pending stand disposed of.
(A .K. Tiwari) (Dr. Srikant Pandey) Acting President Member M. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BHOPAL PLOT NO.76, ARERA HILLS, BHOPAL CONSUMER COMPLAINT NO. 63 OF 2015 FILED ON 19.10.2015 DECIDED ON 07.10.2024 LAXMI PRASAD GUPTA, S/O LATE ROSHAN LAL GUPTA, R/O H.NO.47, ADITYA NAGAR, C.P.COLONY, MORAR CANTT. GWALIOR (M.P.) ... COMPLAINANT. VERSUS GWALIOR DEVELOPMENT AUTHORITY, THROUGH ITS CHIEF EXECUTIVE OFFICER, VIKAS BHAWAN, 1, RAVI NAGAR, GWALIOR (M.P.) ... OPPOSITE PARTY BEFORE : HON'BLE SHRI A. K. TIWARI : ACTING PRESIDENT HON'BLE DR. SRIKANT PANDEY : MEMBER COUNSEL FOR PARTIES: Complainant in person. Shri Ravi Jain, learned counsel for the opposite party. O R D E R (Passed On 07.10.2024)
The following order of the Commission was delivered by A. K. Tiwari, Acting President:
This complaint has been filed under Section 17 of the Consumer Protection Act, 1986 (for short 'Act').
2. Brief facts of the case as stated by the complainant are that the opposite party-Gwalior Development Authority (GDA) issued an advertisement regarding development of a project namely 'Bhau Sahib -2- Potnis Enclave' behind MITS, Gwalior (hereinafter referred to as Enclave) in the year 2013 for construction, development and allotment of flats. The advertisement stated that after paying Rs.1,000/- to the Bank of Baroda, the brochure, prospectus, and application form can be obtained. It is submitted by the complainant that the brochure emphasized closed campus, lifts, covered parking, playground and park in the premises of the enclave, security-suvidha, and distance from railway station as 1.5 km. On 14th March 2013, the initial registration of the flats commenced whereby the flats were allotted on the basis of lottery system and as per terms and conditions of the initial registration, the allottees were required to deposit 10% of the value/amount of the flats and the remaining amount of the decided value/amount of the flats to be deposited in 6 periodic installments. It is further submitted that at the time of inaugural ceremony of announcement of the scheme i.e. 17th April, 2013, Chief Executive Officer and Chairman of GDA made a declaration that the entire work of the enclave will be completed within a period of 18 months.
3. Being influenced by the scheme, the complainant applied for a 2BHK flat. The opposite party by a letter communicated the complainant that a 2BHK flat will cost Rs.25,50,000/-. A letter of allotment outlining the method and manner of deposit of installments was issued to the complainant wherein it was stated that the last installment of the aforesaid -3- amount should be deposited by 15th August 2014. Copy of scheduled letter no.2013/2820 dated 26.03.2013 is annexed as Annexure A-3. It is submitted by the complainant that till 15.08.2014 he had deposited Rs.25,50,000/- including registration amount and the copies of challans are annexed as Annexure A-4. Further a tripartite agreement dated 29.11.2013 was executed between the complainant, the opposite party GDA and the State Bank of India, whereby it is made clear that the bank is providing housing loan to the complainant for the purpose of allotment of flat by GDA under its project. Copy of tripartite agreement dated 29.11.2013 is Annexure A-5.
4. It is alleged by the complainant that 18 months period for completion of project expired in September-2014 beginning from March-2013 but even after depositing all the 6 installments within stipulated time period (August-2014) even till December-2014 the completion of the project was nowhere in sight. The opposite party GDA vide letter no. BSP/Plot/2015/1691 dated 24.03.2015 (A-6) cancelled the allotment of flat made to the complainant pursuant to allotment letter dated 2013/2820 dated 26.03.2013 in consequence of non-payment of fifth and sixth installment by the complainant. Thereafter the complainant submitted representations citing his inability to deposit the installment in time and subsequently the opposite party considering the application of the -4- complainant decided to make a fresh allotment to the complainant upon payment of remaining installments with interest on delay as well as penalty as per disposal rules, 2013 and communicated the same to the complainant vide letter dated 2015/922 dated 20.04.2015 (A-7) and because of this fresh allotment the complainant was to get tripartite agreement made vide dated 08.06.2015 (A-8).
5. Thereafter the complainant deposited the pending installments with interest on delay as well as penalty totaling Rs.28,73,288/-. It is alleged by the complainant that despite depositing the amount with interest and penalty, the prospect of obtaining the delivery of possession of the allotted flat appeared to grow dim with every passing day as the officials of the opposite party-GDA failed to provide a definite time with respect to completion of the project.
6. In the course of time the GDA vide letter no. BSP/estate/2015/2531 dated 09.07.2015 informed the complainant that he has to deposit further sum of Rs.32,200/- as maintenance charges for 3 months Rs.4,200/- @ Rs.1400/- per month and Rs.28,000/- for yearly campus maintenance charges on or before 22 July 2015. The said letter is annexed as Annexure A-9. The complainant disturbed and exasperated by the indifference of the officials of the opposite towards the plight of the complainant and other allottees, did not deposit the amount as requested.-5-
The complainant with other allottees preferred request /complaint /protest /objection letters continuously w.e.f 29.03.2015, 23.04.2015, 23.07.2015, 22.08.2015, 03.09.2015 and 18.09.2015 regarding illegal termination of allotment, levied illegal excessive charges, delay, penalty against delay in installment and on other hand new fresh allotment with new Collector guide lines, etc but of no avail. The said copies together annexed as Annexure A-10. The complainant with other allottees preferred a representation dated 27.07.2015 before the officials of the opposite party agitating their grievances with respect to inordinate delay in completion of the project as well as unjust and unfair demands raised by the officials of the opposite party time and again but of no avail. Thereafter another representation dated 10.09.2015 was given but no heed was paid. Both representations are annexed as Annexure A-11.
7. Eventually on 19th September 2015 DB Star, a supplement to Hindi Newspaper 'Dainik Bhaskar' published a news report wherein the PRO of GDA stated that no play ground is there in the project namely 'Bhau Sahab Potnis Enclave' Phase-1. To confirm the aforesaid fact, the complainant during his personal visit found that there is no space and provision for a park and playground within the enclave premises whereas in the brochure it has been specifically mentioned that there will be park and playground in the premises. Thereafter vide notice dated 28th -6- September 2015, the complainant and other allottees sought refund of the amount deposited by them with the opposite party with interest on account of cheating, unfair trade practice and delay in possession.
8. It is alleged by the complainant that the opposite party-GDA ought to have fulfilled the promises and representations made in the brochure and by not providing playground and park they have committed deficiency in service. Also the opposite party has committed deficiency in service in charging excess amount by way of increase in price, lease rent, maintenance charges, etc over and above the price mentioned in the brochure without any reasonable justification and explanation which amounts to exploitation of the complainant especially when the complainant has deposited the entire amount as demanded within the stipulated period of time. It is submitted that these practices of the opposite party are done with the motive of profit mongering and has caused immense trauma and harassment to the complainant.
9. After seeking permission from this Commission, the complainant amended the complainant on 28.07.2023 and has stated that the opposite party without waiting the decision of Hon'ble Commission sold/leased out the flat no. C-302 allotted to him to other person. The complainant has paid the full and final amount of Rs.27,70,000/-. It is submitted that pending adjudication of the matter the opposite party-GDA -7- re-sold the flat C-302 for Rs.28,60,000/- therefore earned more benefits of Rs.90,000/- (Rs.28,60,000/- - Rs.27,70,000/-=Rs.90,000/-).
10. The complainant therefore alleging deficiency in service on part of opposite party-GDA has filed the present complaint seeking refund of entire price deposited by him i.e. Rs.28,73,288/- with interest @ 18% p.a. to be calculated from the date of different deposits. Rs.50,000/- as compensation for deficiency in service and unfair trade practice and Rs.20,000/- as costs. Also by amending the complaint, the complainant sought the earn profit margin of Rs.90,000/- which have been collected by the GDA by re-selling the disputed flat to someone else. The complainant has filed his affidavit and documents A-1 to A-20. Though there is mention of A-21 original copy of challans but the said copies are not available on record.
11. The opposite party has filed reply wherein they have admitted certain facts and declined certain facts. It is admitted that GDA offered two kinds of flats and emphasized that it is a closed campus, lift, covered parking, playground, park and also the security service is available in the premises but it is denied that it was emphasis that the distance of campus from the Railway Station is only 1.5km. It is also denied that Annexure A-2 was published by GDA, it is submitted that the A-2 is a forged document made by some process by the complainant -8- himself which is clear from the A-1 filed by the complainant himself on which distance from Railway Station is stated as 3KM and actually the distance from Railway Station is near about 3KM which is stated on Annexure A-1. Therefore, it is clear that the complainant has not come with clean hands.
12. It is submitted that at the time of inaugural ceremony held on 17.04.2013, no dignity has announced about completion of work within stipulated time period. In the conditions enclosed with the application form, condition no.7 clearly stated that the lease deed will be executed only after completion of building and at condition no.10 it was stated that possession will be given only after depositing the complete amount as demanded by GDA and also after execution of lease deed. It is also submitted that the complainant did not deposit the installments in the stipulated time period for which the complainant has to pay the interest in accordance with the rules and conditions of GDA for which letter was issued to the complainant but he did not deposit all the installments and interest amount, therefore, his allotment for the concerned flat was supposed to be cancelled but the GDA itself did not cancel the allotment and gave a notice no.3931 dated 26.12.2014 to deposit installments with interest and the GDA cancelled the provisional allotment only after application for cancelation of allotment filed by the complainant himself.
-9-13. It is submitted that allotment for 2BHK flat was registered for the complainant but the cost of the flat was written as provisional and not actual. It was also stated in the conditions annexed with the form in condition no.18 that the cost/rate is only provisional cost and the actual cost will be decided after completion of work and difference amount shall be payable before execution of agreement by the allottee. It is also mention in Annexure A-3 in condition no.2, that the actual cost shall be decided after completion of work and also in condition no.7 it is stated that the cost of maintenance of the campus and parking cost would be decided by the GDA and that also to be borne by the allottee himself/herself separately.
14. It is submitted that the chart given by the complainant is admitted but from the chart itself, it is clear that the complainant did not deposit a single installment in the stipulated time period which is evident from copies of challan (A-4) filed by the complainant and for which the letters were issued to the complainant to deposit difference of actual cost, remaining installment, lease rent of 1 year, stationery charge, service charge and interest on 05.11.2014 and 26.12.2014. It is denied that the complainant paid the entire amount in six installments within specific period as prescribed by the GDA. It is submitted that such a big project takes time for its completion because of so many hurdles comes in the -10- way, therefore, in the regulations and conditions it was made clear that the possession would be given only after completion of work. It is admitted that the opposite party sent a letter A-9 dated 09.07.2015 in accordance with the rules and conditions which was proper but the complainant did not comply with the conditions.
15. It is submitted that Hon'ble Supreme Court in Civil Appeal No.2853 of 2015 (Arising out of SLP (C) No.7300 of 2012 (GDA & Ors Vs Krishna Grih Nirman Sahakari Sanstha) that if a person did not deposit the amount due in the stipulated time period then interest will be charged in accordance with the rules and also the compound interest be payable on the interest which become due for a stipulated time period. Copy of order is annexed as R-1. It is submitted that the GDA have to look after the maintenance of common area up till the possession of all the flats has not been taken over by its concerning allottees and residents' welfare association is not formed.
16. It is submitted with regard to complainant's allegation that he sent request /complaint /protest /objection letters continuously w.e.f 29.03.2015, 23.04.2015, 23.07.2015, 22.08.2015, 03.09.2015 and 18.09.2015 regarding illegal termination of allotment, levied illegal excessive charges, delay, penalty against delay in installment and on other hand new fresh allotment with new Collector guide lines, etc that the -11- complainant was informed vide letter dated 05.11.2014 (R-2) and 26.12.2014 (R-3) to deposit the remaining amount but the complainant did not deposit any amount and filed application dated 09.02.2015 (R-4) to the fact that he will deposit the amount but did not deposit the amount. Therefore, the allotment was cancelled vide letter dated 24.03.2015 (R-5). Thereafter the complainant filed letter dated 29.03.2015. A copy was sent by the complainant to the Collector, Gwalior also in reply to that the letter dated 20.04.2015 (R-6) was sent to the complainant.
17. Thereafter the complainant filed an application dated 07.05.2015 with respect to deposit due amount. The complainant again filed an application for tripartite agreement on 08.06.2015 (R-7). Thereafter the complainant deposited an amount of Rs.9,18,288/- vide challan dated 12.06.2015 (R-8). After depositing the amount allotment letter dated 01.07.2015 (R-9) was issued to the complainant and a demand note vide letter dated 09.07.2015 (R-10) was issued to the complainant. Thereafter the complainant send a representation/notice dated 28.09.2015/29.09.2015 in which in the last paragraph he has quoted that "now we are not interested to get Flat at this stage." This representation/notice has already been annexed by the complainant himself as Annexure A-12. Thereafter the allotment of the complainant -12- was again cancelled on the request of the complainant himself vide letter dated 09.10.2015 (A-15).
18. It is submitted that there is provision of playground and park in the enclave therefore the allegation that there is no playground and park is denied. It is submitted that no extra amount is charged, the actual price, lease rent, maintenance charge all are specified in the terms and conditions and the amount shown in the advertisement was approximate and provisional amount and it was mentioned that actual amount has to be paid before lease deed.
19. Since the complainant has given notice for cancellation of allotment of flat, therefore, the allotment to the complainant has already been cancelled vide order dated 09.10.2015. A copy of order dated 09.10.2015 is already annexed by the complainant as Annexure A-15. It is therefore submitted that the complainant is not eligible for any relief as claimed and the complaint of the complainant deserves to be dismissed with costs. The opposite party GDA has filed affidavit of Ramniwas Sikarwar, Sampada Adhikari, GDA along with documents marked as R-1 to R-10.
20. We have heard complainant who is present in person and learned counsel for the opposite party and perused the record.
-13-21. Complainant who appeared in person has reiterated the same facts as have been stated in the complaint that on different dates he had paid Rs.28,73,288/- including booking amount towards the flat in question. He argued that despite making payment there is no action on the part of the opposite party-GDA to construct and deliver the possession of the constructed flat whereas as per their assurance, they had to deliver the possession of the flat within 18 months from the date of registration but there was no progress in construction of the flats. The complainant and other allottees preferred representation on 27.07.2015 agitating their grievances with respect to inordinate delay in completion of the project as well as unjust and unfair demands time and again but of no avail and therefore the complainant submitted another objection letter dated 10.09.2015 but no heed was paid. He argued that the brochure clearly indicates features/specialties such as closed campus, covered parking, playground and park in the premises, security-suvidha and distance from railway station as 1.5 km, however, the reality is far from the promises and representations made in the brochure. He argued that the opposite party-GDA has committed deficiency in service in charging excess amount, by way of increase in price, lease rent, maintenance charges etc. over and above the price mentioned in the brochure without any reasonable justification and explanation amounts to exploitation of the complainant.
-14-22. He further argued that in the reply the opposite party-GDA has admitted that there is playground and park facility however, in the information sought by the complainant under RTI, the GDA has specifically stated that there is no provision for playground. He argued that in reply it is submitted that there is a covered parking which is contradictory to their letter wherein it is stated that parking space shall vest in the opposite party, who has the right to use it as and when required and the complainant cannot even raise objections against it. He argued that the admission of the opposite party in reply to the complaint with their denial of the contents of the information received under RTI clearly establishes the misrepresentation, misleading advertisement and unfair trade practice on part of the opposite party-GDA. He argued that the opposite party has alleged that the Annexure A-2 is a forged document made by some process by the complainant himself and the complainant has not come before the Hon'ble Commission with clean hands is denied as the complainant is well aware of the fact that furnishing a forged document on affidavit as well as making false statement on affidavit before a Court of Law is a punishable offence.
23. He argued that the complainant for the reasons of inordinate and inexplicable delay in delivery of possession of flats coupled with blatant unfair trade practices, misrepresentations, cheating and false -15- promises, the complainant sought refund of entire amount deposited with interest @ 18% p.a., compensation of Rs.2,00,000/- with costs of Rs.20,000/-. He argued that during sub-judice of the matter before the State Commission, the opposite party-GDA sold the subject flat for Rs.28,60,000/- and therefore earned more profit of Rs.90,000/- (Rs.28,60,000/- - Rs.27,70,000/-=Rs.90,000/-). He argued that the earned amount of Rs.90,000/- must be refunded to the complainant as the opposite party-GDA cannot be allowed to retain profit margin when the case was pending for adjudication before this Commission. He relied upon a judgment of Hon'ble M. P. High Court dated 22.08.2022 passed in First Appeal No. 584 of 2021 wherein in para 37, Hon'ble High Court has held that "Under this circumstances, the provisions of Section 52 of the Transfer of Property Act is fully applicable and in such circumstances, the property in question sold by the respondent no.1 to the respondent nos. 2 & 3 registered on 04.10.2010 is itself void, ineffective and also against the interest and right of the appellant." He argued that the opposite parties have committed gross deficiency in service and unfair trade practice. He therefore prayed that the complaint be allowed.
24. On the other hand, learned counsel for the opposite parties argued that the complainant has voluntarily accepted the offer and registered himself to purchase a flat after fulfilling the application form. In -16- condition no.7 of the application form, it is clearly mentioned that lease deed will be executed only after completion of building as also in condition no.10 it is specified that possession will be given only after depositing the complete amount as demanded by the GDA and after execution of lease deed. He argued that the complainant has not deposited the single installment in the stipulated time period for which the complainant has to pay the interest as per rules and conditions of the GDA for which letters were issued to the complainant but he did not deposit all the installments and interest amount and therefore his allotment for the flat was supposed to be cancelled by the GDA itself but did not cancel the allotment and gave a notice to the complainant dated 26.12.2014 to deposit the installments with interest and thereafter the GDA cancelled the provisional allotment only after application for cancellation of allotment of flat filed by the complainant himself. He argued that in the conditions annexed with application form, in condition no.18 it is clearly mentioned that the cost of the flat is only provisional cost and actual cost will be decided only after completion of work and difference amount shall be payable before execution of agreement by the allottee. Also in condition no.7 it is stated that the cost of maintenance of the campus and parking cost would be decided by the GDA and that also to be borne by the allottee himself separately.
-17-25. He argued that the complainant has not deposited the entire amount (including the actual amount and interest within stipulated time period). He placed reliance on the decision of Hon'ble Supreme Court in Civil Appeal No.2853 of 2015 arising out of SLP (C) No.7300 of 2012 vide order dated 13.03.2015 that if a person did not deposit the amount due in stipulated time period then interest will be charged in accordance with the rules and also the compound interest be payable on the interest which become due for a stipulated time period. He argued that there was no misleading advertisement and false representation. He argued that the facilities as promised are available in the premises. No excess amount is charged from the complainant, the actual price, lease rent, maintenance charges specified in the advertisement was approximate and provisional amount and it has been clearly mentioned that actual amount has to be paid before lease deed.
26. He argued that on the request of cancellation of allotment of flat dated 28/29.09.2015 by the complainant the allotment was cancelled on 09.10.2015 and as per tripartite agreement executed between the complainant, GDA and the bank, the GDA returned the said amount to the bank after deducting 10% of the amount as per rules. Later 10% deducted amount was also deposited with the bank and the State Commission made a direction that the said 10% amount will be refundable to the GDA after -18- decision of the case and till then, the bank kept that much amount in safe custody and only after order of this Commission will pay to the party to whom this Commission is directed. He argued that the complainant is also not entitled to get the amount of Rs.90,000/- by selling the questioned flat to another one. He argued that no deficiency in service or unfair trade practice has been committed by the opposite party-GDA and thus the complaint deserves to be dismissed with costs.
27. After hearing learned counsel for the parties and on going through the complaint, documents, reply of opposite parties, affidavits, written arguments filed by the complainant and other evidentiary material on record we find that the complainant had booked 2BHK flat in the scheme namely 'Bhau Sahib Potnis Enclave' launched by the opposite party-GDA in Gwalior. The complainant alleged deficiency in service, unfair trade practice in not providing facilities as assured as also in not completing the project in prescribed time limit and not giving the facilities as assured, therefore the complainant compelled to issue notice dated 29.09.2015 to the GDA seeking cancellation of allotment of flat and refund of amount deposited by him with interest @ 18% p.a. The complainant's request for cancellation of allotment of flat was accepted by the GDA and vide letter dated 09.10.2015 to the complainant informed him that in response to his demand the allotment order was cancelled. It was also -19- informed that on presenting the original copies of Challan deposited amount shall be refunded to him as per rules. During the course of hearing, learned counsel for the complainant has moved an application seeking interim stay on the letter of cancellation of allotment of flat till final disposal of the complaint. This Commission after hearing parties vide order dated 27.01.2016 opined that in view of the letter dated 09.10.2015, issued by the GDA accepting the request made by the complainant for cancellation of his allotment, no stay order can be passed especially in view of the fact that operation of the cancellation order has already been taken effect. Thereafter this Commission has held that the question remained for disposal of this complaint before this Commission is only about the amount to be refunded to complainant and if any interest is to be paid.
28. Thus the question for disposal of this complaint remained for our consideration in this complaint is:
1) Whether the amount to be refunded to the complainant and if any interest is to be paid on it?
29. From the record, we find that it is an admitted fact that the complainant had booked a 2 BHK flat in the Bhau Sahib Potnis Enclave, Gwalior, project launched by the opposite party GDA. The cost of the flat was shown as Rs.25,50,500/- which was to be paid in 6 installments of -20- Rs.4,25,000/- each and the last installment was to be paid till 15.08.2014. The complainant was allotted flat no. C-302. It is alleged by the complainant that the opposite party-GDA vide letter dated 20.04.2015 (A-7) informed the complainant and made a demand of amount of two installments & difference amount of Rs.8,15,000/- penalty for not depositing the two installments Rs.20,000/-, lease rent for 1 year Rs.2,770/-, service charge, stationery charge Rs.200/- and interest on installments Rs.80,041/-. Thus the complainant had deposited total amount of Rs.28,73,288/- in total instead of Rs.25,50,000/- as total cost of the flat as per advertisement. Here it is pertinent to mention that in condition no.7 of the application form, it is clearly mentioned that lease deed will be executed only after completion of building as also in condition no.10 it is specified that possession will be given only after depositing the complete amount as demanded by the GDA and after execution of lease deed. Also, in condition no.18 it is clearly mentioned that the cost of the flat is only provisional cost and actual cost will be decided only after completion of work and difference amount shall be payable before execution of agreement by the allottee. Also in condition no.8 it is stated that the cost of maintenance of the campus and parking cost would be decided by the GDA and that also to be borne by the allottee himself separately. Since the complainant did not deposit the installments in -21- stipulated time period for which the complainant had to pay the interest as per rules and conditions of the GDA and therefore GDA has issued letter A-7 to deposit the installments and interest amount. Therefore, the allegation of the complainant that the opposite party-GDA made demand of increased price and other charges has not been accepted as the complainant himself defaulted in making payment of installments within stipulated time period. Even otherwise, the dispute regarding escalation of price is not maintainable before the Commissions constituted under the Consumer Protection Act.
30. It is also pertinent to mention here that the complainant did not deposit the installments within stipulated time period despite reminders of the opposite party-GDA letter no.2820 dated 26.03.2013, letter no.3419 dated 05.11.2014 and letter no.3931 dated 26.12.2014 and therefore, the GDA vide letter no.BSP/Plot/2015/1691 dated 24.03.2015 cancelled the allotment of flat for want of non-deposition of installments within stipulated time period. Thereafter on request made by the complainant to various authorities, the GDA had again allotted the same flat to the complainant subject to deposition of remaining installments with interest and penalty. On deposition of the amount, the flat was allotted to the complainant.
31. However, the complainant on 29.09.2015 had applied for cancellation of allotment of flat and the complainant's request for -22- cancellation of allotment of flat was accepted by the GDA and vide letter dated 09.10.2015 to the complainant informed him that in response to his request the allotment order was cancelled. Thereafter, the complainant has filed the present complaint on 19.10.2015. It was also informed that on presenting the original copies of challan deposited amount shall be refunded to him as per rules. During the course of pendency of complaint, the opposite party-GDA as per tripartite agreement between the complainant, GDA and the bank, refunded the cost of the flat as deposited by the complainant to the bank after deducting 10% of the amount as per rules. Later on the direction of this Commission, the GDA deposited the remaining 10% amount, however, this Commission directed the bank not to disburse the said amount to any of the parties till final disposal and only after directions of this Commission.
32. Since the complainant himself made a request for cancellation of allotment of flat and consequently the GDA cancelled the allotment, therefore, there is no question of not providing facilities as alleged to be provided by the GDA. But at the same time as discussed above, the complainant is also at fault as he did not pay the installments in time. The opposite party-GDA is a body who work on any project at different stages as and when they received the amount from the different allottees and if all -23- of them are at default in making payment of installments in time, delay in construction of flats must have occurred.
33. The complainant has filed certain documents obtained by him under RTI from the opposite party GDA. On perusal of those documents, we find that the completion certificate with regard to the aforesaid project had already been issued on 22.05.2015. Also from the letter no.GDA/2015/3167 dated 11.08.2015 of Executive Engineer, Division No.3, GDA addressed to Estate Officer, GDA it is clear that the construction work of flats under the scheme Bhau Sahib Potnis Phase 1 had already been completed and the flats were ready for possession. Thus we find that the complainant's allegation that there was no progress in construction work cannot be accepted more particularly when the construction was completed in May-2015 and the flats were ready for possession in the month of August-2015.
34. It is also pertinent to mention here that in the complaint the complainant has alleged cheating, the cases related to cheating are outside the purview of the Consumer Protection Act. Also on complainant's request dated 08.09.2015, allotment of flat was cancelled by the GDA on 09.10.2015 and the complainant has filed the complaint on 19.10.2015 when he was no more consumer of the opposite party. If the complainant did not make any request to cancel the allotment of flat and took -24- possession of the flat and alleged excess increase in price, defective construction, not providing the facilities as assured the position would have been different.
35. Be that as it may. However, since this Act is beneficiary for consumer, and since this Commission restricted the issue only with regard to whether the amount to be refunded to the complainant and if any interest is to be paid on it? Thus, in our considered view, the complainant is entitled to get back the amount deposited by him i.e. Rs.28,73,288/- with the opposite party towards questioned flat with interest from the date of filing of complaint till the date of payment. Since the amount deposited by the complainant towards the flat had already been refunded by the GDA to the bank as per tripartite agreement, the complainant is entitled to only interest on the said amount from the date of filing of complaint till the date of refund of the amount.
36. So far as the claim of the complainant that the opposite party-GDA sold the questioned flat with profit of Rs.90,000/- and therefore he is entitled to get Rs.90,000/- is concerned, we find that once the complainant himself made a request to cancel the allotment of flat and the GDA cancelled the allotment of flat, therefore, the complainant is not entitled to get any benefit with regard to further sale of questioned flat.
-25-37. In view of the above discussion considering the facts and circumstances of the matter, the consumer complaint is partly allowed and the opposite party-GDA is directed:
1) To pay interest @ 6% p.a. on the amount of Rs.28,73,288/- deposited by the complainant with them from the date of filing of complaint till the date of refund of the amount of Rs.28,73,288/- within two months from the date of this order to the complainant.
2) To pay Rs.5,000/- as costs of litigation to the complainant within a period of two months.
3) FDR so deposited with this Commission be returned to the complainant in terms of the order dated 06.10.2016 passed by Hon'ble National Commission in Revision Petitions No.2918-2924 of 2016.
All the interlocutory applications if pending stand disposed of.
(A .K. Tiwari) (Dr. Srikant Pandey) Acting President Member M. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BHOPAL PLOT NO.76, ARERA HILLS, BHOPAL CONSUMER COMPLAINT NO. 64 OF 2015 FILED ON 19.10.2015 DECIDED ON 07.10.2024 GAYA PRASAD JATAV S/O SHRI MATADEEN, R/O 8, PANCHSHEEL NAGAR, BEHIND MELA GROUND, GWALIOR (M.P.) ... COMPLAINANT. VERSUS GWALIOR DEVELOPMENT AUTHORITY, THROUGH ITS CHIEF EXECUTIVE OFFICER, VIKAS BHAWAN, 1, RAVI NAGAR, GWALIOR (M.P.) ... OPPOSITE PARTY BEFORE : HON'BLE SHRI A. K. TIWARI : ACTING PRESIDENT HON'BLE DR. SRIKANT PANDEY : MEMBER COUNSEL FOR PARTIES: Complainant is present in person. Shri Ravi Jain, learned counsel for the opposite party. O R D E R (Passed On 07.10.2024)
The following order of the Commission was delivered by A. K. Tiwari, Acting President:
This complaint has been filed under Section 17 of the Consumer Protection Act, 1986 (for short 'Act').
2. Brief facts of the case as stated by the complainant are that the opposite party-Gwalior Development Authority (GDA) issued an advertisement regarding development of a project namely 'Bhau Sahib Potnis Enclave' behind MITS, Gwalior (hereinafter referred to as Enclave) -2- in the year 2013 for construction, development and allotment of flats. The advertisement stated that after paying Rs.1,000/- to the Bank of Baroda, the brochure, prospectus, and application form can be obtained. It is submitted by the complainant that the brochure emphasized closed campus, lifts, covered parking, playground and park in the premises of the enclave, security-suvidha, and distance from railway station as 1.5 km. On 14th March 2013, the initial registration of the flats commenced whereby the flats were allotted on the basis of lottery system and as per terms and conditions of the initial registration, the allottees were required to deposit 10% of the value/amount of the flats and the remaining amount of the decided value/amount of the flats to be deposited in 6 periodic installments. It is further submitted that at the time of inaugural ceremony of announcement of the scheme i.e. 17th April, 2013, Chief Executive Officer and Chairman of GDA made a declaration that the entire work of the enclave will be completed within a period of 18 months.
3. Being influenced by the scheme, the complainant applied for a 3BHK flat. The opposite party by a letter communicated the complainant that a 3BHK flat will cost Rs.31,50,000/-. A letter of allotment outlining the method and manner of deposit of installments was issued to the complainant wherein it was stated that the last installment of the aforesaid amount should be deposited by 15th August 2014. Copy of scheduled -3- letter no.2013/2744 dated 26.03.2013 is annexed as Annexure A-3. It is submitted by the complainant that till 15.08.2014 he had deposited Rs.31,50,000/- including registration amount and the copies of challans are annexed as Annexure A-4. Further a tripartite agreement dated 20.02.2014 was executed between the complainant, the opposite party GDA and the State Bank of India, whereby it is made clear that the bank is providing housing loan to the complainant for the purpose of allotment of flat by GDA under its project. Copy of tripartite agreement dated 20.02.2014 is Annexure A-5.
4. It is alleged by the complainant that 18 months period for completion of project expired in September-2014 beginning from March-2013 but even after depositing all the 6 installments within stipulated time period (August-2014) the completion of the project was nowhere in sight. On 12th February 2015 the GDA allotted the flat numbers to various applicants by adopting lottery process and the complainant was allotted flat no. B-303. Even at this point of time, there seemed to be no likelihood of the project being completed within a definite time frame. The GDA vide letter no. 2015/1018 dated 20.02.2015 (A-6) communicated to the complainant, to his surprise and utter dismay that he is required to pay the revised rates for allotted flat. The prices were revised and increased arbitrarily and unjustly, by increasing the cost of the flat by Rs.1,50,000/-, -4- lease rent Rs.3,300/-, stationery charges Rs.200/-, service charges Rs.330/- and interest on installments Rs.2,589/-. It is further submitted by the complainant that the complainant was constrained to meet the demands on dotted lines as required by the GDA and thus submitted an objection letter under protest on 09.03.2015. In addition to depositing the aforesaid amount under protest, the complainant also sought information regarding building material, cost of construction etc. as a justification for the revised amount. Representation dated 09.03.2015 (depositing revised amount under protest) is annexed as Annexure A-7.
5. Further the GDA vide letter no. BSP/estate/2015/2447 dated 07.07.2015, informed the complainant that he has to deposit further sum of Rs.39,200/- as maintenance charges for 3 months Rs.4,200/- @ Rs.1400/- per month and Rs.35,000/- for yearly campus maintenance charges on or before 21 July 2015. The said letter is annexed as Annexure A-8. The complainant disturbed and exasperated by the indifference of the officials of the opposite towards the plight of the complainant and other allottees did not deposit the amount as requested. The complainant with other allottees preferred a representation dated 27.07.2015 before the officials of the opposite party agitating their grievances with respect to inordinate delay in completion of the project as well as unjust and unfair demands raised by the officials of the opposite party time and again but of no avail.-5-
Thereafter another representation dated 10.09.2015 was given but no heed was paid.
6. Eventually on 19th September 2015 DB Star, a supplement to Hindi Newspaper 'Dainik Bhaskar' published a news report wherein the PRO of GDA stated that no play ground is there in the project namely 'Bhau Sahab Potnis Enclave' Phase-1. To confirm the aforesaid fact, the complainant during his personal visit found that there is no space and provision for a park and playground within the enclave premises whereas in the brochure it has been specifically mentioned that there will be park and playground in the premises. Thereafter vide notice dated 28th September 2015, the complainant and other allottees sought refund of the amount deposited by them with the opposite party with interest on account of cheating, unfair trade practice and delay in possession.
7. It is alleged by the complainant that the opposite party-GDA ought to have fulfilled the promises and representations made in the brochure and by not providing playground and park they have committed deficiency in service. Also the opposite party has committed deficiency in service in charging excess amount by way of increase in price, lease rent, maintenance charges, etc over and above the price mentioned in the brochure without any reasonable justification and explanation which amounts to exploitation of the complainant especially when the -6- complainant has deposited the entire amount as demanded within the stipulated period of time. It is submitted that these practices of the opposite party are done with the motive of profit mongering and has caused immense trauma and harassment to the complainant.
8. After seeking permission from this Commission, the complainant amended the complainant on 28.07.2023 and has stated that the opposite party without waiting the decision of Hon'ble Commission sold/leased out the flat no. B-303 to other person. The complainant has paid the full and final amount of Rs.33,06,419/-. It is submitted that pending adjudication of the matter the opposite party-GDA re-sold the flat B-303 for Rs.41,63,500/- therefore earned more benefits of Rs.8,63,500/- (41,63,500-33,00,000=8,63,500).
9. The complainant therefore alleging deficiency in service on part of opposite party-GDA has filed the present complaint seeking refund of entire price deposited by him i.e. Rs.33,06,0419/- with interest @ 18% p.a. to be calculated from the date of different deposits. Rs.50,000/- as compensation for deficiency in service and unfair trade practice and Rs.20,000/- as costs. Also by amending the complaint, the complainant sought the earn profit margin of Rs.8,63,500/- which have been collected by the GDA by re-selling the disputed flat to someone else. The complainant has filed his affidavit and documents A-1 to A-18. Though -7- there is mention that A-19 is original copy of challans but the said copies are not available on record.
10. The opposite party has filed reply wherein they have admitted certain facts and declined certain facts. It is admitted that GDA offered two kinds of flats and emphasized that it is a closed campus, lift, covered parking, playground, park and also the security service is available in the premises but it is denied that it was emphasis that the distance of campus from the Railway Station is only 1.5km. It is also denied that Annexure A-2 was published by GDA, it is submitted that the A-2 is a forged document made by some process by the complainant himself which is clear from the A-1 filed by the complainant himself on which distance from Railway Station is stated as 3KM and actually the distance from Railway Station is near about 3KM which is stated on Annexure A-1. Therefore, it is clear that the complainant has not come with clean hands.
11. It is submitted that at the time of inaugural ceremony held on 17.04.2013, no dignity has announced about completion of work within stipulated time period. In the conditions enclosed with the application form, condition no.7 clearly stated that the lease deed will be executed only after completion of building and at condition no.10 it was stated that possession will be given only after depositing the complete amount as demanded by -8- GDA and also after execution of lease deed. It is also submitted that the complainant did not deposit the installments in the stipulated time period for which the complainant has to pay the interest in accordance with the rules and conditions of GDA for which letter was issued to the complainant but he did not deposit all the installments and interest amount, therefore, his allotment for the concerned flat was supposed to be cancelled but the GDA itself did not cancel the allotment and gave a notice no.2015/1018 dated 20.02.2015 (A-6) to deposit installments with interest and the GDA cancelled the provisional allotment only after application for cancelation of allotment filed by the complainant himself.
12. It is submitted that allotment for 3BHK flat was registered for the complainant but the cost of the flat was written as provisional and not actual. It was also stated in the conditions annexed with the form in condition no.18 that the cost/rate is only provisional cost and the actual cost will be decided after completion of work and difference amount shall be payable before execution of agreement by the allottee. It is also mention in Annexure A-3 in condition no.2, that the actual cost shall be decided after completion of work and also in condition no.7 it is stated that the cost of maintenance of the campus and parking cost would be decided by the GDA and that also to be borne by the allottee himself/herself separately.
-9-13. It is submitted that the chart given by the complainant is admitted but from the chart itself, it is clear that the complainant did not deposit third and fourth installments in the stipulated time period which is evident from copies of challan filed by the complainant and for which the letter was issued to the complainant to deposit difference of actual cost, remaining installment, lease rent of 1 year, stationery charge, service charge and interest on 20.02.2015 which is annexed by the complainant as A-6. It is submitted that such a big project takes time for its completion because of so many hurdles comes in the way, therefore, in the regulations and conditions it was made clear that the possession would be given only after completion of work. It is admitted that the opposite party sent a letter A-6 dated 20.02.2015 as after completion cost was higher than the provisional cost as the complainant was apprised of this fact vide conditions attached to the application form as well as vide Annexure A-3 that actual cost would be payable before executing the lease deed.
14. It is admitted that the complainant filed an application A-7 on 09.03.2015 and 25.03.2015 but it is to mention here that the complainant was asked to deposit remaining amount by letter dated 20.02.2015 (A-6) and thereafter he deposited the amount. It is also admitted that letter dated 07.07.2015 (Annexure A-8) was sent to the complainant in accordance with the rules and conditions which were proper but the complainant did -10- not comply with the conditions. Again on 24.08.2015 the opposite party GDA sent a detailed reminder of demand note for maintenance to the complainant which is annexed as R-1.
15. It is submitted that Hon'ble Supreme Court in Civil Appeal No.2853 of 2015 (Arising out of SLP (C) No.7300 of 2012 (GDA & Ors Vs Krishna Grih Nirman Sahakari Sanstha) that if a person did not deposit the amount due in the stipulated time period then interest will be charged in accordance with the rules and also the compound interest be payable on the interest which become due for a stipulated time period. Copy of order is annexed as R-2. It is submitted that the GDA have to look after the maintenance of common area up till the possession of all the flats has not been taken over by its concerning allottees and residents' welfare association is not formed. It is submitted that there is provision of playground and park in the enclave therefore the allegation that there is no playground and park is denied. It is submitted that no extra amount is charged, the actual price, lease rent, maintenance charge all are specified in the terms and conditions and the amount shown in the advertisement was approximate and provisional amount and it was mentioned that actual amount has to be paid before lease deed.
16. Since the complainant has given notice for cancellation of allotment, therefore, the allotment to the complainant has already been -11- cancelled vide order dated 17.11.2015. A copy of order dated 17.11.2015 is already annexed by the complainant as Annexure A-14. It is therefore submitted that the complainant is not eligible for any relief as claimed and the complaint of the complainant deserves to be dismissed with costs. The opposite party GDA has filed affidavit of Ramniwas Sikarwar, Sampada Adhikari, GDA along with documents marked as R-1 and R-2.
17. We have heard complainant who appears in person and learned counsel for the opposite party and perused the record.
18. Complainant who appeared in person has reiterated the same facts as have been stated in the complaint that on different dates he had paid Rs.33,06,419/- including booking amount towards the flat in question. He argued that despite making payment there is no action on the part of the opposite party-GDA to construct and deliver the possession of the constructed flat whereas as per their assurance, they had to deliver the possession of the flat within 18 months from the date of registration but there was no progress in construction of the flats. The complainant and other allottees preferred representation on 27.07.2015 agitating their grievances with respect to inordinate delay in completion of the project as well as unjust and unfair demands time and again but of no avail and therefore the complainant submitted another objection letter dated 10.09.2015 but no heed was paid. He argued that the brochure clearly -12- indicates features/specialties such as closed campus, covered parking, playground and park in the premises, security-suvidha and distance from railway station as 1.5 km, however, the reality is far from the promises and representations made in the brochure. He argued that the opposite party-GDA has committed deficiency in service in charging excess amount, by way of increase in price, lease rent, maintenance charges etc. over and above the price mentioned in the brochure without any reasonable justification and explanation amounts to exploitation of the complainant.
19. He further argued that in the reply the opposite party-GDA has admitted that there is playground and park facility however, in the information sought by the complainant under RTI, the GDA has specifically stated that there is no provision for playground. He argued that in reply it is submitted that there is a covered parking which is contradictory to their letter wherein it is stated that parking space shall vest in the opposite party, who has the right to use it as and when required and the complainant cannot even raise objections against it. He argued that the admission of the opposite party in reply to the complaint with their denial of the contents of the information received under RTI clearly establishes the misrepresentation, misleading advertisement and unfair trade practice on part of the opposite party-GDA. He argued that the opposite party has alleged that the Annexure A-2 is a forged document made by some -13- process by the complainant himself and the complainant has not come before the Hon'ble Commission with clean hands is denied as the complainant is well aware of the fact that furnishing a forged document on affidavit as well as making false statement on affidavit before a Court of Law is a punishable offence.
20. He argued that the complainant for the reasons of inordinate and inexplicable delay in delivery of possession of flats coupled with blatant unfair trade practices, misrepresentations, cheating and false promises, the complainant sought refund of entire amount deposited with interest @ 18% p.a., compensation of Rs.2,00,000/- with costs of Rs.20,000/-. He argued that during sub-judice of the matter before the State Commission, the opposite party-GDA sold the subject flat for Rs.41,63,500/- and therefore earned more profit of Rs.8,63,500/- (41,63,500-33,00,000=8,63,500). He argued that the earned amount of Rs.8,63,500/- must be refunded to the complainant as the opposite party-GDA cannot be allowed to retain profit margin when the case was pending for adjudication before this Commission. He relied upon a judgment of Hon'ble M. P. High Court dated 22.08.2022 passed in First Appeal No. 584 of 2021 wherein in para 37, Hon'ble High Court has held that "Under this circumstances, the provisions of Section 52 of the Transfer of Property Act is fully applicable and in such circumstances, the property in question sold -14- by the respondent no.1 to the respondent nos. 2 & 3 registered on 04.10.2010 is itself void, ineffective and also against the interest and right of the appellant." He argued that the opposite parties have committed gross deficiency in service and unfair trade practice. He therefore prayed that the complaint be allowed.
21. On the other hand, learned counsel for the opposite parties argued that the complainant has voluntarily accepted the offer and registered himself to purchase a flat after fulfilling the application form. In condition no.7 of the application form, it is clearly mentioned that lease deed will be executed only after completion of building as also in condition no.10 it is specified that possession will be given only after depositing the complete amount as demanded by the GDA and after execution of lease deed. He argued that the complainant has not deposited the installment in the stipulated time period for which the complainant has to pay the interest as per rules and conditions of the GDA for which letter was issued to the complainant but he did not deposit all the installments and interest amount and therefore his allotment for the flat was supposed to be cancelled by the GDA itself but did not cancel the allotment and gave a notice to the complainant dated 20.02.2015 (A-6) to deposit the installments with interest and thereafter the GDA cancelled the provisional allotment only after application for cancellation of allotment of flat filed by the complainant -15- himself. He argued that in the conditions annexed with application form, in condition no.18 it is clearly mentioned that the cost of the flat is only provisional cost and actual cost will be decided only after completion of work and difference amount shall be payable before execution of agreement by the allottee. Also in condition no.7 it is stated that the cost of maintenance of the campus and parking cost would be decided by the GDA and that also to be borne by the allottee himself separately.
22. He argued that the complainant has not deposited the entire amount (including the actual amount and interest within stipulated time period). He placed reliance on the decision of Hon'ble Supreme Court in Civil Appeal No.2853 of 2015 arising out of SLP (C) No.7300 of 2012 vide order dated 13.03.2015 that if a person did not deposit the amount due in stipulated time period then interest will be charged in accordance with the rules and also the compound interest be payable on the interest which become due for a stipulated time period. He argued that there was no misleading advertisement and false representation. He argued that the facilities as promised are available in the premises. No excess amount is charged from the complainant, the actual price, lease rent, maintenance charges specified in the advertisement was approximate and provisional amount and it has been clearly mentioned that actual amount has to be paid before lease deed.
-16-23. He argued that on the request of cancellation of allotment of flat dated 28.09.2015 by the complainant the allotment was cancelled on 17.11.2015 and as per tripartite agreement executed between the complainant, GDA and the bank, the GDA returned the said amount to the bank after deducting 10% of the amount as per rules. Later 10% deducted amount was also deposited with the bank and the State Commission made a direction that the said 10% amount will be refundable to the GDA after decision of the case and till then, the bank kept that much amount in safe custody and only after order of this Commission will pay to the party to whom this Commission is directed. He argued that the complainant is also not entitled to get the amount of Rs.8,63,500/- by selling the questioned flat to another one. He argued that no deficiency in service or unfair trade practice has been committed by the opposite party-GDA and thus the complaint deserves to be dismissed with costs.
24. After hearing learned counsel for the parties and on going through the complaint, documents, reply of opposite parties, affidavits, written arguments filed by the complainant and other evidentiary material on record we find that the complainant had booked flat in the scheme namely 'Bhau Sahib Potnis Enclave' launched by the opposite party-GDA in Gwalior. The complainant alleged deficiency in service, unfair trade practice in not providing facilities as assured as also in not completing the -17- project in prescribed time limit and not giving the facilities as assured, therefore the complainant compelled to issue notice dated 28.09.2015 to the GDA seeking cancellation of allotment of flat and refund of amount deposited by him with interest @ 18% p.a. The complainant's request for cancellation of allotment of flat was accepted by the GDA and vide letter dated 17.11.2015 to the complainant informed him that in response to his demand the allotment order was cancelled. It was also informed that on presenting the original copies of Challan deposited amount shall be refunded to him as per rules. During the course of hearing, learned counsel for the complainant has moved an application seeking interim stay on the letter of cancellation of allotment of flat till final disposal of the complaint. This Commission after hearing parties vide order dated 27.01.2016 opined that in view of the letter dated 17.11.2015 issued by the GDA accepting the request made by the complainant for cancellation of his allotment, no stay order can be passed especially in view of the fact that operation of the cancellation order has already been taken effect. Thereafter this Commission has held that the question remained for disposal of this complaint before this Commission is only about the amount to be refunded to complainant and if any interest is to be paid.
25. Thus the question for disposal of this complaint remained for our consideration in this complaint is:
-18-1) Whether the amount to be refunded to the complainant and if any interest is to be paid on it?
26. From the record, we find that it is an admitted fact that the complainant had booked a 3 BHK flat in the Bhau Sahib Potnis Enclave, Gwalior, project launched by the opposite party GDA. The cost of the flat was shown as Rs.31,50,000/- which was to be paid in 6 installments of Rs.5,25,000/- each and the last installment was to be paid till 15.08.2014. The complainant was allotted flat no. B-303. It is alleged by the complainant that the opposite party-GDA vide letter dated 20.02.2015 (A-6) informed the complainant and made a demand that the cost of the flat was increased by Rs.1,50,000/-, lease rent charge Rs.3,300/- and interest on installments Rs.2,589/-. Thus the complainant had deposited total amount of Rs.33,06,419/- in total instead of Rs.31,50,000/- as total cost of the flat as per advertisement. Here it is pertinent to mention that in condition no.7 of the application form, it is clearly mentioned that lease deed will be executed only after completion of building as also in condition no.10 it is specified that possession will be given only after depositing the complete amount as demanded by the GDA and after execution of lease deed. Also, in condition no.18 it is clearly mentioned that the cost of the flat is only provisional cost and actual cost will be decided only after completion of work and difference amount shall be payable before -19- execution of agreement by the allottee. Also in condition no.8 it is stated that the cost of maintenance of the campus and parking cost would be decided by the GDA and that also to be bear by the allottee himself separately. Since the complainant did not deposit the installments in stipulated time period for which the complainant had to pay the interest as per rules and conditions of the GDA and therefore GDA has issued letter A-6 to deposit the installments and interest amount. Therefore, the allegation of the complainant that the opposite party-GDA made demand of increased price and other charges has not been accepted as the complainant himself defaulted in making payment of installments within stipulated time period. Even otherwise, the dispute regarding escalation of price is not maintainable before the Commissions constituted under the Consumer Protection Act.
27. The complainant on 28.09.2015 had applied for cancellation of allotment of flat and thereafter filed complaint on 19.10.2015. Thereafter, the complainant's request for cancellation of allotment of flat was accepted by the GDA and vide letter dated 17.11.2015 to the complainant informed him that in response to his request the allotment order was cancelled. It was also informed that on presenting the original copies of challan deposited amount shall be refunded to him as per rules. During the course of pendency of complaint, the opposite party-GDA as per tripartite -20- agreement between the complainant, GDA and the bank, refunded the cost of the flat as deposited by the complainant to the bank after deducting 10% of the amount as per rules. Later on the direction of this Commission, the GDA deposited the remaining 10% amount, however, this Commission directed the bank not to disburse the said amount to any of the parties till final disposal and only after directions of this Commission.
28. Since the complainant himself made a request for cancellation of allotment of flat and consequently the GDA cancelled the allotment, therefore, there is no question of not providing facilities as alleged to be provided by the GDA. But at the same time as discussed above, the complainant is also at fault and he did not pay the installments in time. The opposite party-GDA is a body who work on any project at different stages as and when they received the amount from the different allottees and if all of them are at default in making payment of installments in time, delay in construction of flats must have occurred.
29. The complainant has filed certain documents obtained by him under RTI from the opposite party GDA. On perusal of those documents, we find that the completion certificate with regard to the aforesaid project had already been issued on 22.05.2015. Also from the letter no.GDA/2015/3167 dated 11.08.2015 of Executive Engineer, Division No.3, GDA addressed to Estate Officer, GDA it is clear that the -21- construction work of flats under the scheme Bhau Sahib Potnis Phase 1 had already been completed and the flats were ready for possession. Thus we find that the complainant's allegation that there was no progress in construction work cannot be accepted more particularly when the construction was completed in May-2015 and the flats were ready for possession in the month of August-2015.
30. It is also pertinent to mention here that in the complaint the complainant has alleged cheating, the cases related to cheating are outside the purview of the Consumer Protection Act.
31. Be that as it may. However, since this Act is beneficiary for consumer, and since this Commission restricted the issue only with regard to whether the amount to be refunded to the complainant and if any interest is to be paid on it? Thus, in our considered view, the complainant is entitled to get back the amount deposited by him i.e. Rs.33,06,419/- with the opposite party towards questioned flat with interest from the date of filing of complaint till the date of payment. Since the amount deposited by the complainant towards the flat had already been refunded by the GDA to the bank as per tripartite agreement, the complainant is entitled to only interest on the said amount from the date of filing of complaint till the date of refund of the amount.
-22-32. So far as the claim of the complainant that the opposite party-GDA sold the questioned flat with profit of Rs.8,63,500/- and therefore he is entitled to get Rs.8,63,500/- is concerned, we find that once the complainant himself made a request to cancel the allotment of flat and the GDA cancelled the allotment of flat, therefore, the complainant is not entitled to get any benefit with regard to further sale of questioned flat.
33. In view of the above discussion considering the facts and circumstances of the matter, the consumer complaint is partly allowed and the opposite party-GDA is directed:
1) To pay interest @ 6% p.a. on the amount of Rs. 33,06,419/- deposited by the complainant with them from the date of filing of complaint till the date of refund of the amount of Rs.33,06,419/- within two months from the date of this order to the complainant.
2) To pay Rs.5,000/- as costs of litigation to the complainant within a period of two months.
3) FDR so deposited with this Commission be returned to the complainant in terms of the order dated 06.10.2016 passed by Hon'ble National Commission in Revision Petitions No.2918-2924 of 2016.
All the interlocutory applications if pending stand disposed of.
(A .K. Tiwari) (Dr. Srikant Pandey) Acting President Member M. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BHOPAL PLOT NO.76, ARERA HILLS, BHOPAL CONSUMER COMPLAINT NO. 65 OF 2015 FILED ON 19.10.2015 DECIDED ON 07.10.2024 RAVINDRA SINGH RANA, S/O SHRI DILIP SINGH RANA, R/O 90, TIKONIYA GALI NO.3, MORAR, GWALIOR (M.P.) ... COMPLAINANT. VERSUS GWALIOR DEVELOPMENT AUTHORITY, THROUGH ITS CHIEF EXECUTIVE OFFICER, VIKAS BHAWAN, 1, RAVI NAGAR, GWALIOR (M.P.) ... OPPOSITE PARTY BEFORE : HON'BLE SHRI A. K. TIWARI : ACTING PRESIDENT HON'BLE DR. SRIKANT PANDEY : MEMBER COUNSEL FOR PARTIES: Complainant is present in person. Shri Ravi Jain, learned counsel for the opposite party. O R D E R (Passed On 07.10.2024)
The following order of the Commission was delivered by A. K. Tiwari, Acting President:
This complaint has been filed under Section 17 of the Consumer Protection Act, 1986 (for short 'Act').
2. Brief facts of the case as stated by the complainant are that the opposite party-Gwalior Development Authority (GDA) issued an advertisement regarding development of a project namely 'Bhau Sahib Potnis Enclave' behind MITS, Gwalior (hereinafter referred to as Enclave) -2- in the year 2013 for construction, development and allotment of flats. The advertisement stated that after paying Rs.1,000/- to the Bank of Baroda, the brochure, prospectus, and application form can be obtained. It is submitted by the complainant that the brochure emphasized closed campus, lifts, covered parking, playground and park in the premises of the enclave, security-suvidha, and distance from railway station as 1.5 km. On 14th March 2013, the initial registration of the flats commenced whereby the flats were allotted on the basis of lottery system and as per terms and conditions of the initial registration, the allottees were required to deposit 10% of the value/amount of the flats and the remaining amount of the decided value/amount of the flats to be deposited in 6 periodic installments. It is further submitted that at the time of inaugural ceremony of announcement of the scheme i.e. 17th April, 2013, Chief Executive Officer and Chairman of GDA made a declaration that the entire work of the enclave will be completed within a period of 18 months.
3. Being influenced by the scheme, the complainant applied for a 3BHK flat. Interestingly, the complainant herein was allotted the same but at a higher price. The opposite party by a letter communicated the complainant that a 3BHK flat will cost Rs.32,50,000/- i.e. one lakh more than the price proposed in the brochure. A letter of allotment outlining the method and manner of deposit of installments was issued to the -3- complainant wherein it was stated that the last installment of the aforesaid amount should be deposited by 30th August 2014. Copy of scheduled letter no.2013/5822 dated 30.09.2013 is annexed as Annexure A-3. It is submitted by the complainant that till 30.08.2014 he had deposited Rs.32,50,000/- including registration amount and the copies of challans are annexed as Annexure A-4. Further a tripartite agreement dated 14.11.2013 was executed between the complainant, the opposite party GDA and the State Bank of India, whereby it is made clear that the bank is providing housing loan to the complainant for the purpose of allotment of flat by GDA under its project. Copy of tripartite agreement dated 14.11.2013 is Annexure A-5.
4. It is alleged by the complainant that 18 months period for completion of project expired in September-2014 beginning from March-2013 but even after depositing all the 6 installments within stipulated time period (August-2014) the completion of the project was nowhere in sight. On 12th February 2015 the GDA allotted the flat numbers to various applicants by adopting lottery process and the complainant was allotted flat no. B-105. Even at this point of time, there seemed to be no likelihood of the project being completed within a definite time frame. The GDA vide letter no. 2015/985 dated 20.02.2015 (A-6) communicated to the complainant, to his surprise and utter dismay that he is required to pay the -4- revised rates for allotted flat. The prices were revised and increased arbitrarily and unjustly, by increasing the cost of the flat by Rs.1,60,000/-, lease rent Rs.3,410/-, stationery charges Rs.200/-, service charges Rs.341/- and interest on installments to be deposited on or before 10.03.2015. It is further submitted by the complainant that the complainant was compelled to pay excessive amount without any reasonable justification. Inspite of the fact that the complainant and the other allottees deposited the entire amount including the revised amount within stipulated period of time, the prospect of obtaining delivery of possession of the allotted flat appeared to grow dim with every passing day as the officials of the opposite party-GDA failed to provide definite time with respect to completion of the project.
5. Further the GDA vide letter no. BSP/estate/2015/2407 dated 07.07.2015, informed the complainant that he has to deposit further sum of Rs.39,200/- as maintenance charges for 3 months Rs.4,200/- @ Rs.1400/- per month and Rs.35,000/- for yearly campus maintenance charges on or before 14th August 2015. The said letter is annexed as Annexure A-7. The complainant disturbed and exasperated by the indifference of the officials of the opposite towards the plight of the complainant and other allottees did not deposit the amount as requested. The complainant with other allottees preferred a representation dated 27.07.2015 before the officials -5- of the opposite party agitating their grievances with respect to inordinate delay in completion of the project as well as unjust and unfair demands raised by the officials of the opposite party time and again but of no avail. Thereafter another representation dated 10.09.2015 was given but no heed was paid.
6. Eventually on 19th September 2015 DB Star, a supplement to Hindi Newspaper 'Dainik Bhaskar' published a news report wherein the PRO of GDA stated that no play ground is there in the project namely 'Bhau Sahab Potnis Enclave' Phase-1. To confirm the aforesaid fact, the complainant during his personal visit found that there is no space and provision for a park and playground within the enclave premises whereas in the brochure it has been specifically mentioned that there will be park and playground in the premises. Thereafter vide notice dated 28th September 2015, the complainant and other allottees sought refund of the amount deposited by them with the opposite party with interest on account of cheating, unfair trade practice and delay in possession.
7. It is alleged by the complainant that the opposite party-GDA ought to have fulfilled the promises and representations made in the brochure and by not providing playground and park they have committed deficiency in service. Also the opposite party has committed deficiency in service in charging excess amount by way of increase in price, lease rent, -6- maintenance charges, etc over and above the price mentioned in the brochure without any reasonable justification and explanation which amounts to exploitation of the complainant especially when the complainant has deposited the entire amount as demanded within the stipulated period of time. It is submitted that these practices of the opposite party are done with the motive of profit mongering and has caused immense trauma and harassment to the complainant.
8. The complainant therefore alleging deficiency in service on part of opposite party-GDA has filed the present complaint seeking refund of entire price deposited by him i.e. Rs.34,13,951/-. Later by filing an application seeking amendment in the complainant dated 26.03.2016 he has submitted that he had deposited Rs.34,17,194/- therefore he claimed Rs.34,17,194/- with interest @ 18% p.a. to be calculated from the date of different deposits. Rs.50,000/- as compensation for deficiency in service and unfair trade practice and Rs.20,000/- as costs. The complainant has filed his affidavit and documents A-1 to A-17. Though there is mention that A-18 are the original copy of challans but the said copies are not available on record.
9. The opposite party has filed reply wherein they have admitted certain facts and declined certain facts. It is admitted that GDA offered two kinds of flats and emphasized that it is a closed campus, lift, -7- covered parking, playground, park and also the security service is available in the premises but it is denied that it was emphasis that the distance of campus from the Railway Station is only 1.5km. It is also denied that Annexure A-2 was published by GDA, it is submitted that the A-2 is a forged document made by some process by the complainant himself which is clear from the A-1 filed by the complainant himself on which distance from Railway Station is stated as 3KM and actually the distance from Railway Station is near about 3KM which is stated on Annexure A-1. Therefore, it is clear that the complainant has not come with clean hands.
10. It is submitted that at the time of inaugural ceremony held on 17.04.2013, no dignity has announced about completion of work within stipulated time period. In the conditions enclosed with the application form, condition no.7 clearly stated that the lease deed will be executed only after completion of building and at condition no.10 it was stated that possession will be given only after depositing the complete amount as demanded by GDA and also after execution of lease deed. It is also submitted that the complainant did not deposit the installments in the stipulated time period for which the complainant has to pay the interest in accordance with the rules and conditions of GDA for which letter was issued to the complainant but he did not deposit all the installments and interest amount, therefore, -8- his allotment for the concerned flat was supposed to be cancelled but the GDA itself did not cancel the allotment and gave a notice no.2015/985 dated 20.02.2015 (A-6) to deposit installments with interest and the GDA cancelled the provisional allotment only after application for cancelation of allotment filed by the complainant himself.
11. It is submitted that allotment for 3BHK flat was registered for the complainant but the cost of the flat was written as provisional and not actual. It was also stated in the conditions annexed with the form in condition no.18 that the cost/rate is only provisional cost and the actual cost will be decided after completion of work and difference amount shall be payable before execution of agreement by the allottee. It is also mention in Annexure A-3 in condition no.2, that the actual cost shall be decided after completion of work and also in condition no.7 it is stated that the cost of maintenance of the campus and parking cost would be decided by the GDA and that also to be borne by the allottee himself/herself separately.
12. It is submitted that the chart given by the complainant is admitted but from the chart itself, it is clear that the complainant did not deposit third and fourth installments in the stipulated time period which is evident from copies of challan filed by the complainant and for which the letter was issued to the complainant to deposit difference of actual cost, -9- remaining installment, lease rent of 1 year, stationery charge, service charge and interest on 20.02.2015 which is annexed by the complainant as A-6. It is submitted that such a big project takes time for its completion because of so many hurdles comes in the way, therefore, in the regulations and conditions it was made clear that the possession would be given only after completion of work. It is admitted that the opposite party sent a letter A-6 dated 20.02.2015 as after completion cost was higher than the provisional cost as the complainant was apprised of this fact vide conditions attached to the application form as well as vide Annexure A-3 that actual cost would be payable before executing the lease deed.
13. It is admitted that the complainant was asked to deposit remaining amount by letter dated 20.02.2015 (A-6) and thereafter he deposited the amount. It is also admitted that letter dated 07.07.2015 (Annexure A-7) was sent to the complainant in accordance with the rules and conditions to deposit further amount of Rs.39,200/- as maintenance charges which were proper but the complainant did not comply with the conditions. Again on 23.09.2015 the opposite party GDA sent a detailed reminder of demand note for maintenance to the complainant which is annexed as R-1.
14. It is submitted that Hon'ble Supreme Court in Civil Appeal No.2853 of 2015 (Arising out of SLP (C) No.7300 of 2012 (GDA & Ors Vs -10- Krishna Grih Nirman Sahakari Sanstha) that if a person did not deposit the amount due in the stipulated time period then interest will be charged in accordance with the rules and also the compound interest be payable on the interest which become due for a stipulated time period. Copy of order is annexed as R-2. It is submitted that the GDA have to look after the maintenance of common area up till the possession of all the flats has not been taken over by its concerning allottees and residents' welfare association is not formed. It is submitted that there is provision of playground and park in the enclave therefore the allegation that there is no playground and park is denied. It is submitted that no extra amount is charged, the actual price, lease rent, maintenance charge all are specified in the terms and conditions and the amount shown in the advertisement was approximate and provisional amount and it was mentioned that actual amount has to be paid before lease deed.
15. Since the complainant has given notice for cancellation of allotment, therefore, the allotment to the complainant has already been cancelled vide order dated 17.11.2015. A copy of order dated 17.11.2015 is already annexed by the complainant as Annexure A-13. It is therefore submitted that the complainant is not eligible for any relief as claimed and the complaint of the complainant deserves to be dismissed with costs.-11-
The opposite party GDA has filed affidavit of Ramniwas Sikarwar, Sampada Adhikari, GDA along with documents marked as R-1 and R-2.
16. We have heard complainant who appears in person and learned counsel for the opposite party and perused the record.
17. Complainant who appeared in person has reiterated the same facts as have been stated in the complaint that on different dates he had paid Rs.34,17,194/- including booking amount towards the flat in question. He argued that despite making payment there is no action on the part of the opposite party-GDA to construct and deliver the possession of the constructed flat whereas as per their assurance, they had to deliver the possession of the flat within 18 months from the date of registration but there was no progress in construction of the flats. The complainant and other allottees preferred representation on 27.07.2015 agitating their grievances with respect to inordinate delay in completion of the project as well as unjust and unfair demands time and again but of no avail and therefore the complainant submitted another objection letter dated 10.09.2015 but no heed was paid. He argued that the brochure clearly indicates features/specialties such as closed campus, covered parking, playground and park in the premises, security-suvidha and distance from railway station as 1.5 km, however, the reality is far from the promises and representations made in the brochure. He argued that the opposite party-
-12-GDA has committed deficiency in service in charging excess amount, by way of increase in price, lease rent, maintenance charges etc. over and above the price mentioned in the brochure without any reasonable justification and explanation amounts to exploitation of the complainant.
18. He further argued that in the reply the opposite party-GDA has admitted that there is playground and park facility however, in the information sought by the complainant under RTI, the GDA has specifically stated that there is no provision for playground. He argued that in reply it is submitted that there is a covered parking which is contradictory to their letter wherein it is stated that parking space shall vest in the opposite party, who has the right to use it as and when required and the complainant cannot even raise objections against it. He argued that the admission of the opposite party in reply to the complaint with their denial of the contents of the information received under RTI clearly establishes the misrepresentation, misleading advertisement and unfair trade practice on part of the opposite party-GDA. He argued that the opposite party has alleged that the Annexure A-2 is a forged document made by some process by the complainant himself and the complainant has not come before the Hon'ble Commission with clean hands is denied as the complainant is well aware of the fact that furnishing a forged document on -13- affidavit as well as making false statement on affidavit before a Court of Law is a punishable offence.
19. He argued that the complainant for the reasons of inordinate and inexplicable delay in delivery of possession of flats coupled with blatant unfair trade practices, misrepresentations, cheating and false promises, the complainant sought refund of entire amount deposited with interest @ 18% p.a., compensation of Rs.2,00,000/- with costs of Rs.20,000/-. He argued that the opposite parties have committed gross deficiency in service and unfair trade practice. He therefore prayed that the complaint be allowed.
20. On the other hand, learned counsel for the opposite parties argued that the complainant has voluntarily accepted the offer and registered himself to purchase a flat after fulfilling the application form. In condition no.7 of the application form, it is clearly mentioned that lease deed will be executed only after completion of building as also in condition no.10 it is specified that possession will be given only after depositing the complete amount as demanded by the GDA and after execution of lease deed. He argued that the complainant has not deposited the installment in the stipulated time period for which the complainant has to pay the interest as per rules and conditions of the GDA for which letter was issued to the complainant but he did not deposit all the installments and interest amount -14- and therefore his allotment for the flat was supposed to be cancelled by the GDA itself but did not cancel the allotment and gave a notice to the complainant dated 20.02.2015 (A-6) to deposit the installments with interest and thereafter the GDA cancelled the provisional allotment only after application for cancellation of allotment of flat filed by the complainant himself. He argued that in the conditions annexed with application form, in condition no.18 it is clearly mentioned that the cost of the flat is only provisional cost and actual cost will be decided only after completion of work and difference amount shall be payable before execution of agreement by the allottee. Also in condition no.7 it is stated that the cost of maintenance of the campus and parking cost would be decided by the GDA and that also to be borne by the allottee himself separately.
21. He argued that the complainant has not deposited the entire amount (including the actual amount and interest within stipulated time period). He placed reliance on the decision of Hon'ble Supreme Court in Civil Appeal No.2853 of 2015 arising out of SLP (C) No.7300 of 2012 vide order dated 13.03.2015 that if a person did not deposit the amount due in stipulated time period then interest will be charged in accordance with the rules and also the compound interest be payable on the interest which become due for a stipulated time period. He argued that there was no misleading advertisement and false representation. He argued that the -15- facilities as promised are available in the premises. No excess amount is charged from the complainant, the actual price, lease rent, maintenance charges specified in the advertisement was approximate and provisional amount and it has been clearly mentioned that actual amount has to be paid before lease deed.
22. He argued that on the request of cancellation of allotment of flat dated 28.09.2015 by the complainant the allotment was cancelled on 17.11.2015 and as per tripartite agreement executed between the complainant, GDA and the bank, the GDA returned the said amount to the bank after deducting 10% of the amount as per rules. Later 10% deducted amount was also deposited with the bank and the State Commission made a direction that the said 10% amount will be refundable to the GDA after decision of the case and till then, the bank kept that much amount in safe custody and only after order of this Commission will pay to the party to whom this Commission is directed. He argued that no deficiency in service or unfair trade practice has been committed by the opposite party-GDA and thus the complaint deserves to be dismissed with costs.
23. After hearing learned counsel for the parties and on going through the complaint, documents, reply of opposite parties, affidavits, written arguments filed by the complainant and other evidentiary material on record we find that the complainant had booked flat in the scheme -16- namely 'Bhau Sahib Potnis Enclave' launched by the opposite party-GDA in Gwalior. The complainant alleged deficiency in service, unfair trade practice in not providing facilities as assured as also in not completing the project in prescribed time limit and not giving the facilities as assured, therefore the complainant compelled to issue notice dated 28.09.2015 to the GDA seeking cancellation of allotment of flat and refund of amount deposited by him with interest @ 18% p.a. The complainant's request for cancellation of allotment of flat was accepted by the GDA and vide letter dated 17.11.2015 to the complainant informed him that in response to his demand the allotment order was cancelled. It was also informed that on presenting the original copies of Challan deposited amount shall be refunded to him as per rules. During the course of hearing, learned counsel for the complainant has moved an application seeking interim stay on the letter of cancellation of allotment of flat till final disposal of the complaint. This Commission after hearing parties vide order dated 27.01.2016 opined that in view of the letter dated 17.11.2015 issued by the GDA accepting the request made by the complainant for cancellation of his allotment, no stay order can be passed especially in view of the fact that operation of the cancellation order has already been taken effect. Thereafter this Commission has held that the question remained for -17- disposal of this complaint before this Commission is only about the amount to be refunded to complainant and if any interest is to be paid.
24. Thus the question for disposal of this complaint remained for our consideration in this complaint is:
1) Whether the amount to be refunded to the complainant and if any interest is to be paid on it?
25. From the record, we find that it is an admitted fact that the complainant had booked a 3 BHK flat in the Bhau Sahib Potnis Enclave, Gwalior, project launched by the opposite party GDA. The cost of the flat was shown as Rs.32,50,000/- which was to be paid in 6 installments of Rs.5,42,000/- each and the last installment was to be paid till 30.08.2014. The complainant was allotted flat no. B-105. It is alleged by the complainant that the opposite party-GDA vide letter dated 20.02.2015 (A-6) informed the complainant and made a demand that the cost of the flat was increased by Rs.1,60,000/-, lease rent charge Rs.3,410/- and interest on installments. Thus the complainant had deposited total amount of Rs.34,17,194/- in total instead of Rs.32,50,000/- as total cost of the flat as per advertisement. Here it is pertinent to mention that in condition no.7 of the application form, it is clearly mentioned that lease deed will be executed only after completion of building as also in condition no.10 it is specified that possession will be given only after depositing the complete -18- amount as demanded by the GDA and after execution of lease deed. Also, in condition no.18 it is clearly mentioned that the cost of the flat is only provisional cost and actual cost will be decided only after completion of work and difference amount shall be payable before execution of agreement by the allottee. Also in condition no.8 it is stated that the cost of maintenance of the campus and parking cost would be decided by the GDA and that also to be bear by the allottee himself separately. Since the complainant did not deposit the installments in stipulated time period for which the complainant had to pay the interest as per rules and conditions of the GDA and therefore GDA has issued letter A-6 to deposit the installments and interest amount. Therefore, the allegation of the complainant that the opposite party-GDA made demand of increased price and other charges has not been accepted as the complainant himself defaulted in making payment of installments within stipulated time period. Even otherwise, the dispute regarding escalation of price is not maintainable before the Commissions constituted under the Consumer Protection Act.
26. The complainant on 28.09.2015 had applied for cancellation of allotment of flat and thereafter filed complaint on 19.10.2015. Thereafter, the complainant's request for cancellation of allotment of flat was accepted by the GDA and vide letter dated 17.11.2015 to the complainant informed -19- him that in response to his request the allotment order was cancelled. It was also informed that on presenting the original copies of challan deposited amount shall be refunded to him as per rules. During the course of pendency of complaint, the opposite party-GDA as per tripartite agreement between the complainant, GDA and the bank, refunded the cost of the flat as deposited by the complainant to the bank after deducting 10% of the amount as per rules. Later on the direction of this Commission, the GDA deposited the remaining 10% amount, however, this Commission directed the bank not to disburse the said amount to any of the parties till final disposal and only after directions of this Commission.
27. Since the complainant himself made a request for cancellation of allotment of flat and consequently the GDA cancelled the allotment, therefore, there is no question of not providing facilities as alleged to be provided by the GDA. But at the same time as discussed above, the complainant is also at fault and he did not pay the installments in time. The opposite party-GDA is a body who work on any project at different stages as and when they received the amount from the different allottees and if all of them are at default in making payment of installments in time, delay in construction of flats must have occurred.
28. The complainant has filed certain documents obtained by him under RTI from the opposite party GDA. On perusal of those documents, -20- we find that the completion certificate with regard to the aforesaid project had already been issued on 22.05.2015. Also from the letter no.GDA/2015/3167 dated 11.08.2015 of Executive Engineer, Division No.3, GDA addressed to Estate Officer, GDA it is clear that the construction work of flats under the scheme Bhau Sahib Potnis Phase 1 had already been completed and the flats were ready for possession. Thus we find that the complainant's allegation that there was no progress in construction work cannot be accepted more particularly when the construction was completed in May-2015 and the flats were ready for possession in the month of August-2015.
29. It is also pertinent to mention here that in the complaint the complainant has alleged cheating, the cases related to cheating are outside the purview of the Consumer Protection Act.
30. Be that as it may. However, since this Act is beneficiary for consumer, and since this Commission restricted the issue only with regard to whether the amount to be refunded to the complainant and if any interest is to be paid on it? Thus, in our considered view, the complainant is entitled to get back the amount deposited by him i.e. Rs.34,17,194/- with the opposite party towards questioned flat with interest from the date of filing of complaint till the date of payment. Since the amount deposited by the complainant towards the flat had already been refunded by the GDA to -21- the bank as per tripartite agreement, the complainant is entitled to only interest on the said amount from the date of filing of complaint till the date of refund of the amount.
31. In view of the above discussion considering the facts and circumstances of the matter, the consumer complaint is partly allowed and the opposite party-GDA is directed:
1) To pay interest @ 6% p.a. on the amount of Rs. 34,17,194/- deposited by the complainant with them from the date of filing of complaint till the date of refund of the amount of Rs.34,17,194/- within two months from the date of this order to the complainant.
2) To pay Rs.5,000/- as costs of litigation to the complainant within a period of two months.
3) FDR so deposited with this Commission be returned to the complainant in terms of the order dated 06.10.2016 passed by Hon'ble National Commission in Revision Petitions No.2918-2924 of 2016.
All the interlocutory applications if pending stand disposed of.
(A .K. Tiwari) (Dr. Srikant Pandey) Acting President Member M. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BHOPAL PLOT NO.76, ARERA HILLS, BHOPAL CONSUMER COMPLAINT NO. 66 OF 2015 FILED ON 19.10.2015 DECIDED ON 07.10.2024 RAVI SHANKAR TIWARI S/O SHRI K.P.TIWARI, R/O DM-136, D.D.NAGAR, GWALIOR (M.P.) ... COMPLAINANT. VERSUS GWALIOR DEVELOPMENT AUTHORITY, THROUGH ITS CHIEF EXECUTIVE OFFICER, VIKAS BHAWAN, 1, RAVI NAGAR, GWALIOR (M.P.) ... OPPOSITE PARTY BEFORE : HON'BLE SHRI A. K. TIWARI : ACTING PRESIDENT HON'BLE DR. SRIKANT PANDEY : MEMBER COUNSEL FOR PARTIES: Complainant is present in person. Shri Ravi Jain, learned counsel for the opposite party. O R D E R (Passed On 07.10.2024)
The following order of the Commission was delivered by A. K. Tiwari, Acting President:
This complaint has been filed under Section 17 of the Consumer Protection Act, 1986 (for short 'Act').
2. Brief facts of the case as stated by the complainant are that the opposite party-Gwalior Development Authority (GDA) issued an advertisement regarding development of a project namely 'Bhau Sahib Potnis Enclave' behind MITS, Gwalior (hereinafter referred to as Enclave) -2- in the year 2013 for construction, development and allotment of flats. The advertisement stated that after paying Rs.1,000/- to the Bank of Baroda, the brochure, prospectus, and application form can be obtained. It is submitted by the complainant that the brochure emphasized closed campus, lifts, covered parking, playground and park in the premises of the enclave, security-suvidha, and distance from railway station as 1.5 km. On 14th March 2013, the initial registration of the flats commenced whereby the flats were allotted on the basis of lottery system and as per terms and conditions of the initial registration, the allottees were required to deposit 10% of the value/amount of the flats and the remaining amount of the decided value/amount of the flats to be deposited in 6 periodic installments. It is further submitted that at the time of inaugural ceremony of announcement of the scheme i.e. 17th April, 2013, Chief Executive Officer and Chairman of GDA made a declaration that the entire work of the enclave will be completed within a period of 18 months.
3. Being influenced by the scheme, the complainant applied for a 3BHK flat. The cost of 3 BHK flat was shown in brochure as Rs.31,50,000/- Interestingly, the complainant herein was allotted the same but at a higher price. The opposite party by a letter communicated the complainant that a 3BHK flat will cost Rs.32,50,000/- i.e. one lakh more than the price proposed in the brochure. The opposite party by a letter -3- communicated the complainant that a 3BHK flat will cost Rs.32,50,000/-. A letter of allotment outlining the method and manner of deposit of installments was issued to the complainant wherein it was stated that the last installment of the aforesaid amount should be deposited by 30th August 2014. Copy of scheduled letter no.2013/5825 dated 30.09.2013 is annexed as Annexure A-3. It is submitted by the complainant that till 30.08.2014 he had deposited Rs.32,50,000/- including registration amount and the copies of challans are annexed as Annexure A-4. Further a tripartite agreement dated 27.03.2014 was executed between the complainant, the opposite party GDA and the State Bank of India, whereby it is made clear that the bank is providing housing loan to the complainant for the purpose of allotment of flat by GDA under its project. Copy of tripartite agreement dated 27.03.2014 is Annexure A-5.
4. It is alleged by the complainant that 18 months period for completion of project expired in September-2014 beginning from March-2013 but even after depositing all the 6 installments within stipulated time period (August-2014) the completion of the project was nowhere in sight. On 12th February 2015 the GDA allotted the flat numbers to various applicants by adopting lottery process and the complainant was allotted flat no. A-205. Even at this point of time, there seemed to be no likelihood of the project being completed within a definite time frame. The GDA vide -4- letter no. 2015/982 dated 20.02.2015 (A-6) communicated to the complainant, to his surprise and utter dismay that he is required to pay the revised rates for allotted flat. The prices were revised and increased arbitrarily and unjustly, by increasing the cost of the flat by Rs.1,60,000/-, lease rent Rs.3,410/-, stationery charges Rs.200/-, service charges Rs.341/- and interest on installments Rs.4,603/-. It is further submitted by the complainant that the complainant was constrained to meet the demands on dotted lines as required by the GDA and thus submitted an objection letter under protest on 09.03.2015. In addition to depositing the aforesaid amount under protest, the complainant also sought information regarding building material, cost of construction etc. as a justification for the revised amount. Representation dated 09.03.2015 (depositing revised amount under protest) is annexed as Annexure A-7.
5. Further the GDA vide letter dated 07.07.2015, informed the complainant that he has to deposit further sum of Rs.39,200/- as maintenance charges for 3 months Rs.4,200/- @ Rs.1400/- per month and Rs.35,000/- for yearly campus maintenance charges on or before 21 July 2015. The complainant disturbed and exasperated by the indifference of the officials of the opposite towards the plight of the complainant and other allottees did not deposit the amount as requested. The complainant with other allottees preferred a representation dated 27.07.2015 (A-8) before -5- the officials of the opposite party agitating their grievances with respect to inordinate delay in completion of the project as well as unjust and unfair demands raised by the officials of the opposite party time and again but of no avail. Thereafter another representation dated 10.09.2015 (A-9) was given but no heed was paid.
6. Eventually on 19th September 2015 DB Star, a supplement to Hindi Newspaper 'Dainik Bhaskar' published a news report wherein the PRO of GDA stated that no play ground is there in the project namely 'Bhau Sahab Potnis Enclave' Phase-1. To confirm the aforesaid fact, the complainant during his personal visit found that there is no space and provision for a park and playground within the enclave premises whereas in the brochure it has been specifically mentioned that there will be park and playground in the premises. Thereafter vide notice dated 28th September 2015, the complainant and other allottees sought refund of the amount deposited by them with the opposite party with interest on account of cheating, unfair trade practice and delay in possession.
7. It is alleged by the complainant that the opposite party-GDA ought to have fulfilled the promises and representations made in the brochure and by not providing playground and park they have committed deficiency in service. Also the opposite party has committed deficiency in service in charging excess amount by way of increase in price, lease rent, -6- maintenance charges, etc over and above the price mentioned in the brochure without any reasonable justification and explanation which amounts to exploitation of the complainant especially when the complainant has deposited the entire amount as demanded within the stipulated period of time. It is submitted that these practices of the opposite party are done with the motive of profit mongering and has caused immense trauma and harassment to the complainant.
8. After seeking permission from this Commission, the complainant amended the complainant on 28.07.2023 and has stated that the opposite party without waiting the decision of Hon'ble Commission sold/leased out the flat no. A-205 to other person. The complainant has paid the full and final amount of Rs.34,10,000/-. It is submitted that pending adjudication of the matter the opposite party-GDA re-sold the flat A-205 for Rs.41,85,000/- therefore earned more benefits of Rs.8,85,000/- (41,85,000-33,00,000=8,85,000). Furthermore, the flat no. B-602 (which is not subject flat) was again auctioned and final amount received Rs.42,05,000/- it means (42,05,000-33,00,000=9,05,000) thus illegally earned extra amount of Rs.8,85,000/-+Rs.9,05,000/-=Rs.17,90,000/-.
9. The complainant therefore alleging deficiency in service on part of opposite party-GDA has filed the present complaint seeking refund of entire price deposited by him i.e. Rs.34,18,554/- with interest @ 18% -7- p.a. to be calculated from the date of different deposits. Rs.50,000/- as compensation for deficiency in service and unfair trade practice and Rs.20,000/- as costs. Also by amending the complaint, the complainant sought the earn profit margin of Rs.17,90,000/- which have been collected by the GDA by re-selling the disputed flat to someone else. The complainant has filed his affidavit and documents A-1 to A-17. Though there is mention that A-18 is original copy of challans but the said copies are not available on record.
10. The opposite party has filed reply wherein they have admitted certain facts and declined certain facts. It is admitted that GDA offered two kinds of flats and emphasized that it is a closed campus, lift, covered parking, playground, park and also the security service is available in the premises but it is denied that it was emphasis that the distance of campus from the Railway Station is only 1.5km. It is also denied that Annexure A-2 was published by GDA, it is submitted that the A-2 is a forged document made by some process by the complainant himself which is clear from the A-1 filed by the complainant himself on which distance from Railway Station is stated as 3KM and actually the distance from Railway Station is near about 3KM which is stated on Annexure A-1. Therefore, it is clear that the complainant has not come with clean hands.-8-
11. It is submitted that at the time of inaugural ceremony held on 17.04.2013, no dignity has announced about completion of work within stipulated time period. In the conditions enclosed with the application form, condition no.7 clearly stated that the lease deed will be executed only after completion of building and at condition no.10 it was stated that possession will be given only after depositing the complete amount as demanded by GDA and also after execution of lease deed. It is also submitted that the complainant did not deposit the installments in the stipulated time period for which the complainant has to pay the interest in accordance with the rules and conditions of GDA for which letter was issued to the complainant but he did not deposit all the installments and interest amount, therefore, his allotment for the concerned flat was supposed to be cancelled but the GDA itself did not cancel the allotment and gave a notice no.2015/982 dated 20.02.2015 (A-6) to deposit installments with interest and the GDA cancelled the provisional allotment only after application for cancelation of allotment filed by the complainant himself.
12. It is submitted that allotment for 3BHK flat was registered for the complainant but the cost of the flat was written as provisional and not actual. It was also stated in the conditions annexed with the form in condition no.18 that the cost/rate is only provisional cost and the actual cost will be decided after completion of work and difference amount shall -9- be payable before execution of agreement by the allottee. It is also mention in Annexure A-3 in condition no.2, that the actual cost shall be decided after completion of work and also in condition no.7 it is stated that the cost of maintenance of the campus and parking cost would be decided by the GDA and that also to be borne by the allottee himself/herself separately.
13. It is submitted that the chart given by the complainant is admitted but from the chart itself, it is clear that the complainant did not deposit third and fourth installments in the stipulated time period which is evident from copies of challan filed by the complainant and for which the letter was issued to the complainant to deposit difference of actual cost, remaining installment, lease rent of 1 year, stationery charge, service charge and interest on 20.02.2015 which is annexed by the complainant as A-6. It is submitted that such a big project takes time for its completion because of so many hurdles comes in the way, therefore, in the regulations and conditions it was made clear that the possession would be given only after completion of work. It is admitted that the opposite party sent a letter A-6 dated 20.02.2015 as after completion cost was higher than the provisional cost as the complainant was apprised of this fact vide conditions attached to the application form as well as vide Annexure A-3 that actual cost would be payable before executing the lease deed.-10-
14. It is admitted that the complainant filed an application A-7 on 09.03.2015 but it is to mention here that the complainant was asked to deposit remaining amount by letter dated 20.02.2015 (A-6) and thereafter he deposited the amount. It is also admitted that letter dated 07.07.2015 (Annexure R-1) was sent to the complainant in accordance with the rules and conditions which were proper but the complainant did not comply with the conditions. Again on 23.09.2015 the opposite party GDA sent a detailed reminder of demand note for maintenance charges to the complainant which is annexed as R-2.
15. It is submitted that Hon'ble Supreme Court in Civil Appeal No.2853 of 2015 (Arising out of SLP (C) No.7300 of 2012 (GDA & Ors Vs Krishna Grih Nirman Sahakari Sanstha) that if a person did not deposit the amount due in the stipulated time period then interest will be charged in accordance with the rules and also the compound interest be payable on the interest which become due for a stipulated time period. Copy of order is annexed as R-3. It is submitted that the GDA have to look after the maintenance of common area up till the possession of all the flats has not been taken over by its concerning allottees and residents' welfare association is not formed. It is submitted that there is provision of playground and park in the enclave therefore the allegation that there is no playground and park is denied. It is submitted that no extra amount is -11- charged, the actual price, lease rent, maintenance charge all are specified in the terms and conditions and the amount shown in the advertisement was approximate and provisional amount and it was mentioned that actual amount has to be paid before lease deed.
16. Since the complainant has given notice for cancellation of allotment on 28.09.2015, therefore, the allotment to the complainant has already been cancelled vide order dated 18.11.2015. A copy of order dated 18.11.2015 is already annexed by the complainant as Annexure A-13. It is therefore submitted that the complainant is not eligible for any relief as claimed and the complaint of the complainant deserves to be dismissed with costs. The opposite party GDA has filed affidavit of Ramniwas Sikarwar, Sampada Adhikari, GDA along with documents marked as R-1 to R-3.
17. We have heard complainant who appears in person and learned counsel for the opposite party and perused the record.
18. Complainant who appeared in person has reiterated the same facts as have been stated in the complaint that on different dates he had paid Rs.34,18,554/- including booking amount towards the flat in question. He argued that despite making payment there is no action on the part of the opposite party-GDA to construct and deliver the possession of the constructed flat whereas as per their assurance, they had to deliver the -12- possession of the flat within 18 months from the date of registration but there was no progress in construction of the flats. The complainant and other allottees preferred representation on 27.07.2015 agitating their grievances with respect to inordinate delay in completion of the project as well as unjust and unfair demands time and again but of no avail and therefore the complainant submitted another objection letter dated 10.09.2015 but no heed was paid. He argued that the brochure clearly indicates features/specialties such as closed campus, covered parking, playground and park in the premises, security-suvidha and distance from railway station as 1.5 km, however, the reality is far from the promises and representations made in the brochure. He argued that the opposite party-GDA has committed deficiency in service in charging excess amount, by way of increase in price, lease rent, maintenance charges etc. over and above the price mentioned in the brochure without any reasonable justification and explanation amounts to exploitation of the complainant.
19. He further argued that in the reply the opposite party-GDA has admitted that there is playground and park facility however, in the information sought by the complainant under RTI, the GDA has specifically stated that there is no provision for playground. He argued that in reply it is submitted that there is a covered parking which is contradictory to their letter wherein it is stated that parking space shall vest in the opposite -13- party, who has the right to use it as and when required and the complainant cannot even raise objections against it. He argued that the admission of the opposite party in reply to the complaint with their denial of the contents of the information received under RTI clearly establishes the misrepresentation, misleading advertisement and unfair trade practice on part of the opposite party-GDA. He argued that the opposite party has alleged that the Annexure A-2 is a forged document made by some process by the complainant himself and the complainant has not come before the Hon'ble Commission with clean hands is denied as the complainant is well aware of the fact that furnishing a forged document on affidavit as well as making false statement on affidavit before a Court of Law is a punishable offence.
20. He argued that the complainant for the reasons of inordinate and inexplicable delay in delivery of possession of flats coupled with blatant unfair trade practices, misrepresentations, cheating and false promises, the complainant sought refund of entire amount deposited with interest @ 18% p.a., compensation of Rs.2,00,000/- with costs of Rs.20,000/-. He argued that during sub-judice of the matter before the State Commission, the opposite party-GDA sold the subject flat re-sold the flat A-205 for Rs.41,85,000/- therefore earned more benefits of Rs.8,85,000/- (41,85,000-33,00,000=8,85,000). Furthermore, the flat no.-14-
B-602 (which is not subject flat) was again auctioned and final amount received Rs.42,05,000/- it means (42,05,000-33,00,000=9,05,000) thus illegally earned extra amount of Rs.8,85,000/-+Rs.9,05,000/-=Rs.17,90,000/-. He argued that the earned amount of Rs.17,90,000/- must be refunded to the complainant as the opposite party-GDA cannot be allowed to retain profit margin when the case was pending for adjudication before this Commission. He relied upon a judgment of Hon'ble M. P. High Court dated 22.08.2022 passed in First Appeal No. 584 of 2021 wherein in para 37, Hon'ble High Court has held that "Under this circumstances, the provisions of Section 52 of the Transfer of Property Act is fully applicable and in such circumstances, the property in question sold by the respondent no.1 to the respondent nos. 2 & 3 registered on 04.10.2010 is itself void, ineffective and also against the interest and right of the appellant." He argued that the opposite parties have committed gross deficiency in service and unfair trade practice. He therefore prayed that the complaint be allowed.
21. On the other hand, learned counsel for the opposite parties argued that the complainant has voluntarily accepted the offer and registered himself to purchase a flat after fulfilling the application form. In condition no.7 of the application form, it is clearly mentioned that lease deed will be executed only after completion of building as also in condition -15- no.10 it is specified that possession will be given only after depositing the complete amount as demanded by the GDA and after execution of lease deed. He argued that the complainant has not deposited the installment in the stipulated time period for which the complainant has to pay the interest as per rules and conditions of the GDA for which letter was issued to the complainant but he did not deposit all the installments and interest amount and therefore his allotment for the flat was supposed to be cancelled by the GDA itself but did not cancel the allotment and gave a notice to the complainant dated 20.02.2015 (A-6) to deposit the installments with interest and thereafter the GDA cancelled the provisional allotment only after application for cancellation of allotment of flat filed by the complainant himself. He argued that in the conditions annexed with application form, in condition no.18 it is clearly mentioned that the cost of the flat is only provisional cost and actual cost will be decided only after completion of work and difference amount shall be payable before execution of agreement by the allottee. Also in condition no.7 it is stated that the cost of maintenance of the campus and parking cost would be decided by the GDA and that also to be borne by the allottee himself separately.
22. He argued that the complainant has not deposited the entire amount (including the actual amount and interest within stipulated time period). He placed reliance on the decision of Hon'ble Supreme Court in -16- Civil Appeal No.2853 of 2015 arising out of SLP (C) No.7300 of 2012 vide order dated 13.03.2015 that if a person did not deposit the amount due in stipulated time period then interest will be charged in accordance with the rules and also the compound interest be payable on the interest which become due for a stipulated time period. He argued that there was no misleading advertisement and false representation. He argued that the facilities as promised are available in the premises. No excess amount is charged from the complainant, the actual price, lease rent, maintenance charges specified in the advertisement was approximate and provisional amount and it has been clearly mentioned that actual amount has to be paid before lease deed.
23. He argued that on the request of cancellation of allotment of flat dated 28.09.2015 by the complainant the allotment was cancelled on 18.11.2015 and as per tripartite agreement executed between the complainant, GDA and the bank, the GDA returned the said amount to the bank after deducting 10% of the amount as per rules. Later 10% deducted amount was also deposited with the bank and the State Commission made a direction that the said 10% amount will be refundable to the GDA after decision of the case and till then, the bank kept that much amount in safe custody and only after order of this Commission will pay to the party to whom this Commission is directed. He argued that the complainant is also -17- not entitled to get the amount of Rs.17,90,000/- by selling the questioned flat to another one. He argued that no deficiency in service or unfair trade practice has been committed by the opposite party-GDA and thus the complaint deserves to be dismissed with costs.
24. After hearing learned counsel for the parties and on going through the complaint, documents, reply of opposite parties, affidavits, written arguments filed by the complainant and other evidentiary material on record we find that the complainant had booked flat in the scheme namely 'Bhau Sahib Potnis Enclave' launched by the opposite party-GDA in Gwalior. The complainant alleged deficiency in service, unfair trade practice in not providing facilities as assured as also in not completing the project in prescribed time limit and not giving the facilities as assured, therefore the complainant compelled to issue notice dated 28.09.2015 to the GDA seeking cancellation of allotment of flat and refund of amount deposited by him with interest @ 18% p.a. The complainant's request for cancellation of allotment of flat was accepted by the GDA and vide letter dated 18.11.2015 to the complainant informed him that in response to his demand the allotment order was cancelled. It was also informed that on presenting the original copies of Challan deposited amount shall be refunded to him as per rules. During the course of hearing, learned counsel for the complainant has moved an application seeking interim stay -18- on the letter of cancellation of allotment of flat till final disposal of the complaint. This Commission after hearing parties vide order dated 27.01.2016 opined that in view of the letter dated 18.11.2015 issued by the GDA accepting the request made by the complainant for cancellation of his allotment, no stay order can be passed especially in view of the fact that operation of the cancellation order has already been taken effect. Thereafter this Commission has held that the question remained for disposal of this complaint before this Commission is only about the amount to be refunded to complainant and if any interest is to be paid.
25. Thus the question for disposal of this complaint remained for our consideration in this complaint is:
1) Whether the amount to be refunded to the complainant and if any interest is to be paid on it?
26. From the record, we find that it is an admitted fact that the complainant had booked a 3 BHK flat in the Bhau Sahib Potnis Enclave, Gwalior, project launched by the opposite party GDA. The cost of the flat was shown as Rs.32,50,000/- which was to be paid in 6 installments of Rs.5,42,000/- each and the last installment was to be paid till 30.08.2014. The complainant was allotted flat no. A-205. It is alleged by the complainant that the opposite party-GDA vide letter dated 20.02.2015 (A-6) informed the complainant and made a demand that the cost of the flat -19- was increased by Rs.1,60,000/-, lease rent charge Rs.3,410/- and interest on installments. Thus the complainant had deposited total amount of Rs.34,18,554/- in total instead of Rs.32,50,000/- as total cost of the flat as per advertisement. Here it is pertinent to mention that in condition no.7 of the application form, it is clearly mentioned that lease deed will be executed only after completion of building as also in condition no.10 it is specified that possession will be given only after depositing the complete amount as demanded by the GDA and after execution of lease deed. Also, in condition no.18 it is clearly mentioned that the cost of the flat is only provisional cost and actual cost will be decided only after completion of work and difference amount shall be payable before execution of agreement by the allottee. Also in condition no.8 it is stated that the cost of maintenance of the campus and parking cost would be decided by the GDA and that also to be bear by the allottee himself separately. Since the complainant did not deposit the installments in stipulated time period for which the complainant had to pay the interest as per rules and conditions of the GDA and therefore GDA has issued letter A-6 to deposit the installments and interest amount. Therefore, the allegation of the complainant that the opposite party-GDA made demand of increased price and other charges has not been accepted as the complainant himself defaulted in making payment of installments within stipulated time period.
-20-Even otherwise, the dispute regarding escalation of price is not maintainable before the Commissions constituted under the Consumer Protection Act.
27. The complainant on 28.09.2015 had applied for cancellation of allotment of flat and thereafter filed complaint on 19.10.2015. Thereafter, the complainant's request for cancellation of allotment of flat was accepted by the GDA and vide letter dated 18.11.2015 to the complainant informed him that in response to his request the allotment order was cancelled. It was also informed that on presenting the original copies of challan deposited amount shall be refunded to him as per rules. During the course of pendency of complaint, the opposite party-GDA as per tripartite agreement between the complainant, GDA and the bank, refunded the cost of the flat as deposited by the complainant to the bank after deducting 10% of the amount as per rules. Later on the direction of this Commission, the GDA deposited the remaining 10% amount, however, this Commission directed the bank not to disburse the said amount to any of the parties till final disposal and only after directions of this Commission.
28. Since the complainant himself made a request for cancellation of allotment of flat and consequently the GDA cancelled the allotment, therefore, there is no question of not providing facilities as alleged to be provided by the GDA. But at the same time as discussed above, the -21- complainant is also at fault and he did not pay the installments in time. The opposite party-GDA is a body who work on any project at different stages as and when they received the amount from the different allottees and if all of them are at default in making payment of installments in time, delay in construction of flats must have occurred.
29. The complainant has filed certain documents obtained by him under RTI from the opposite party GDA. On perusal of those documents, we find that the completion certificate with regard to the aforesaid project had already been issued on 22.05.2015. Also from the letter no.GDA/2015/3167 dated 11.08.2015 of Executive Engineer, Division No.3, GDA addressed to Estate Officer, GDA it is clear that the construction work of flats under the scheme Bhau Sahib Potnis Phase 1 had already been completed and the flats were ready for possession. Thus we find that the complainant's allegation that there was no progress in construction work cannot be accepted more particularly when the construction was completed in May-2015 and the flats were ready for possession in the month of August-2015.
30. It is also pertinent to mention here that in the complaint the complainant has alleged cheating, the cases related to cheating are outside the purview of the Consumer Protection Act.
-22-31. Be that as it may. However, since this Act is beneficiary for consumer, and since this Commission restricted the issue only with regard to whether the amount to be refunded to the complainant and if any interest is to be paid on it? Thus, in our considered view, the complainant is entitled to get back the amount deposited by him i.e. Rs.34,18,554/- with the opposite party towards questioned flat with interest from the date of filing of complaint till the date of payment. Since the amount deposited by the complainant towards the flat had already been refunded by the GDA to the bank as per tripartite agreement, the complainant is entitled to only interest on the said amount from the date of filing of complaint till the date of refund of the amount.
32. So far as the claim of the complainant that the opposite party-GDA sold the questioned flat with profit of Rs.8,85,000/- and the sold the Flat No. B-602 with profit of Rs.9,05,000/- therefore he is entitled to get Rs.17,90,000/- is concerned, we find that the complainant was allotted flat no. A-205 and he has nothing to do with the flat no. B-602. Also once the complainant himself made a request to cancel the allotment of flat and the GDA cancelled the allotment of flat, therefore, the complainant is not entitled to get any benefit with regard to further sale of questioned flat.
-23-33. In view of the above discussion considering the facts and circumstances of the matter, the consumer complaint is partly allowed and the opposite party-GDA is directed:
1) To pay interest @ 6% p.a. on the amount of Rs. 34,18,554/- deposited by the complainant with them from the date of filing of complaint till the date of refund of the amount of Rs.34,18,554/- within two months from the date of this order to the complainant.
2) To pay Rs.5,000/- as costs of litigation to the complainant within a period of two months.
3) FDR so deposited with this Commission be returned to the complainant in terms of the order dated 06.10.2016 passed by Hon'ble National Commission in Revision Petitions No.2918-2924 of 2016.
All the interlocutory applications if pending stand disposed of.
(A .K. Tiwari) (Dr. Srikant Pandey) Acting President Member M. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BHOPAL PLOT NO.76, ARERA HILLS, BHOPAL CONSUMER COMPLAINT NO. 67 OF 2015 FILED ON 19.10.2015 DECIDED ON 07.10.2024 BRIJ MOHAN KAIN S/O SHRI MANGAL SINGH KAIN, R/O B-1, VIVEK NAGAR, THATIPUR, GWALIOR (M.P.) ... COMPLAINANT. VERSUS GWALIOR DEVELOPMENT AUTHORITY, THROUGH ITS CHIEF EXECUTIVE OFFICER, VIKAS BHAWAN, 1, RAVI NAGAR, GWALIOR (M.P.) ... OPPOSITE PARTY BEFORE : HON'BLE SHRI A. K. TIWARI : ACTING PRESIDENT HON'BLE DR. SRIKANT PANDEY : MEMBER COUNSEL FOR PARTIES: Complainant is present in person. Shri Ravi Jain, learned counsel for the opposite party. O R D E R (Passed On 07.10.2024)
The following order of the Commission was delivered by A. K. Tiwari, Acting President:
This complaint has been filed under Section 17 of the Consumer Protection Act, 1986 (for short 'Act').
2. Brief facts of the case as stated by the complainant are that the opposite party-Gwalior Development Authority (GDA) issued an advertisement regarding development of a project namely 'Bhau Sahib Potnis Enclave' behind MITS, Gwalior (hereinafter referred to as Enclave) -2- in the year 2013 for construction, development and allotment of flats. The advertisement stated that after paying Rs.1,000/- to the Bank of Baroda, the brochure, prospectus, and application form can be obtained. It is submitted by the complainant that the brochure emphasized closed campus, lifts, covered parking, playground and park in the premises of the enclave, security-suvidha, and distance from railway station as 1.5 km. On 14th March 2013, the initial registration of the flats commenced whereby the flats were allotted on the basis of lottery system and as per terms and conditions of the initial registration, the allottees were required to deposit 10% of the value/amount of the flats and the remaining amount of the decided value/amount of the flats to be deposited in 6 periodic installments. It is further submitted that at the time of inaugural ceremony of announcement of the scheme i.e. 17th April, 2013, Chief Executive Officer and Chairman of GDA made a declaration that the entire work of the enclave will be completed within a period of 18 months.
3. Being influenced by the scheme, the complainant applied for a 2BHK flat. The cost of 2 BHK flat was shown in brochure as Rs.25,50,000/- The opposite party by a letter communicated the complainant that a 2BHK flat will cost Rs.25,50,000/-. A letter of allotment outlining the method and manner of deposit of installments was issued to the complainant wherein it was stated that the last installment of the -3- aforesaid amount should be deposited by 15th August 2014. Copy of scheduled letter no.2013/2816 dated 26.03.2013. is annexed as Annexure A-3. It is submitted by the complainant that till 15.08.2014 he had deposited Rs.25,50,000/- including registration amount and the copies of challans are annexed as Annexure A-4. Further a tripartite agreement dated 22.10.2013 was executed between the complainant, the opposite party GDA and the State Bank of India, whereby it is made clear that the bank is providing housing loan to the complainant for the purpose of allotment of flat by GDA under its project. Copy of tripartite agreement dated 22.10.2013 is Annexure A-5.
4. It is alleged by the complainant that 18 months period for completion of project expired in September-2014 beginning from March-2013 but even after depositing all the 6 installments within stipulated time period (August-2014) the completion of the project was nowhere in sight. On 12th February 2015 the GDA allotted the flat numbers to various applicants by adopting lottery process and the complainant was allotted flat no. C-506. Even at this point of time, there seemed to be no likelihood of the project being completed within a definite time frame. The GDA vide letter no. 2015/948 dated 20.02.2015 (A-6) communicated to the complainant, to his surprise and utter dismay that he is required to pay the revised rates for allotted flat. The prices were revised and increased -4- arbitrarily and unjustly, by increasing the cost of the flat by Rs.1,30,000/-, lease rent Rs.2,680/-, stationery charges Rs.200/-, service charges Rs.268/- and interest on installments. It is further submitted by the complainant that the complainant was constrained to meet the demands on dotted lines as required by the GDA and thus submitted an objection letter under protest on 08.09.2015 (A-7). In addition to depositing the aforesaid amount under protest, the complainant also sought information regarding building material, cost of construction etc. as a justification for the revised amount. Representation dated 08.09.2015 (depositing revised amount under protest) is annexed as Annexure A-7.
5. Further the GDA vide letter BSP/estate/2015/2423 dated 07.07.2015 (A-8), informed the complainant that he has to deposit further sum of Rs.1,60,906/- as maintenance charges for 3 months Rs.4,200/- @ Rs.1400/- per month and Rs.35,000/- for yearly campus maintenance charges on or before 14th August 2015. The complainant disturbed and exasperated by the indifference of the officials of the opposite towards the plight of the complainant and other allottees did not deposit the amount as requested. The complainant with other allottees preferred a representation dated 27.07.2015 before the officials of the opposite party agitating their grievances with respect to inordinate delay in completion of the project as well as unjust and unfair demands raised by the officials of the opposite -5- party time and again but of no avail. Thereafter another representation dated 10.09.2015 was given but no heed was paid.
6. Eventually on 19th September 2015 DB Star, a supplement to Hindi Newspaper 'Dainik Bhaskar' published a news report wherein the PRO of GDA stated that no play ground is there in the project namely 'Bhau Sahab Potnis Enclave' Phase-1. To confirm the aforesaid fact, the complainant during his personal visit found that there is no space and provision for a park and playground within the enclave premises whereas in the brochure it has been specifically mentioned that there will be park and playground in the premises. Thereafter vide notice dated 28th September 2015, the complainant and other allottees sought refund of the amount deposited by them with the opposite party with interest on account of cheating, unfair trade practice and delay in possession.
7. It is alleged by the complainant that the opposite party-GDA ought to have fulfilled the promises and representations made in the brochure and by not providing playground and park they have committed deficiency in service. Also the opposite party has committed deficiency in service in charging excess amount by way of increase in price, lease rent, maintenance charges, etc over and above the price mentioned in the brochure without any reasonable justification and explanation which amounts to exploitation of the complainant especially when the -6- complainant has deposited the entire amount as demanded within the stipulated period of time. It is submitted that these practices of the opposite party are done with the motive of profit mongering and has caused immense trauma and harassment to the complainant.
8. After seeking permission from this Commission, the complainant amended the complainant on 28.07.2023 and has stated that the opposite party without waiting the decision of Hon'ble Commission sold/leased out the flat no. C-506 to other person. The complainant has paid the full and final amount of Rs.26,83,148/-. It is submitted that pending adjudication of the matter the opposite party-GDA re-sold the flat C-506 for Rs.28,65,000/- therefore earned more benefits of Rs.1,85,000/- (28,65,000-26,80,000=1,85,000). thus illegally earned extra amount of Rs.1,85,000/-.
9. The complainant therefore alleging deficiency in service on part of opposite party-GDA has filed the present complaint seeking refund of entire price deposited by him i.e. Rs.26,83,148/- with interest @ 18% p.a. to be calculated from the date of different deposits. Rs.50,000/- as compensation for deficiency in service and unfair trade practice and Rs.20,000/- as costs. Also by amending the complaint, the complainant sought the earn profit margin of Rs.1,85,000/- which have been collected -7- by the GDA by re-selling the disputed flat to someone else. The complainant has filed his affidavit and documents A-1 to A-20.
10. The opposite party has filed reply wherein they have admitted certain facts and declined certain facts. It is admitted that GDA offered two kinds of flats and emphasized that it is a closed campus, lift, covered parking, playground, park and also the security service is available in the premises but it is denied that it was emphasis that the distance of campus from the Railway Station is only 1.5km. It is also denied that Annexure A-2 was published by GDA, it is submitted that the A-2 is a forged document made by some process by the complainant himself which is clear from the A-1 filed by the complainant himself on which distance from Railway Station is stated as 3KM and actually the distance from Railway Station is near about 3KM which is stated on Annexure A-1. Therefore, it is clear that the complainant has not come with clean hands.
11. It is submitted that at the time of inaugural ceremony held on 17.04.2013, no dignity has announced about completion of work within stipulated time period. In the conditions enclosed with the application form, condition no.7 clearly stated that the lease deed will be executed only after completion of building and at condition no.10 it was stated that possession will be given only after depositing the complete amount as demanded by -8- GDA and also after execution of lease deed. It is also submitted that the complainant did not deposit the installments in the stipulated time period for which the complainant has to pay the interest in accordance with the rules and conditions of GDA for which letter was issued to the complainant but he did not deposit all the installments and interest amount, therefore, his allotment for the concerned flat was supposed to be cancelled but the GDA itself did not cancel the allotment and gave a notice no.3936 dated 26.12.2014 to deposit installments with interest and the GDA cancelled the provisional allotment only after application for cancelation of allotment filed by the complainant himself.
12. It is submitted that allotment for 2BHK flat was registered for the complainant but the cost of the flat was written as provisional and not actual. It was also stated in the conditions annexed with the form in condition no.18 that the cost/rate is only provisional cost and the actual cost will be decided after completion of work and difference amount shall be payable before execution of agreement by the allottee. It is also mention in Annexure A-3 in condition no.2, that the actual cost shall be decided after completion of work and also in condition no.7 it is stated that the cost of maintenance of the campus and parking cost would be decided by the GDA and that also to be borne by the allottee himself/herself separately.-9-
13. It is submitted that the chart given by the complainant is admitted but from the chart itself, it is clear that the complainant did not deposit a single installment in the stipulated time period which is evident from copies of challan filed by the complainant himself and for which the letter was issued to the complainant to deposit difference of actual cost, remaining installment, lease rent of 1 year, stationery charge, service charge and interest on 20.02.2015 which is annexed by the complainant as A-6. It is submitted that such a big project takes time for its completion because of so many hurdles comes in the way, therefore, in the regulations and conditions it was made clear that the possession would be given only after completion of work. It is admitted that the opposite party sent a letter A-6 dated 20.02.2015 as after completion cost was higher than the provisional cost as the complainant was apprised of this fact vide conditions attached to the application form as well as vide Annexure A-3 that actual cost would be payable before executing the lease deed.
14. It is admitted that the complainant filed an application A-7 on 08.09.2015 but it is to mention here that the complainant after apprising with details of all dues himself filed an application dated 13.08.2015 to the effect that he is depositing the interest and other dues amounting Rs.1,60,906/-. A copy of application dated 13.08.2015 is annexed herewith as Annexure R-1, but he did not deposit the said amount. In fact the -10- complainant did not deposit the entire amount (including the actual amount with interest within stipulated time period). Thereafter the letter dated 07.07.2015 (Annexure A-8) was sent to the complainant in accordance with the rules and conditions which were proper but the complainant did not comply with the conditions. Again on 23.09.2015 the opposite party GDA sent a detailed reminder of demand note to the complainant but in compliance of this demand note no interest on premium was deposited by the complainant.
15. It is submitted that Hon'ble Supreme Court in Civil Appeal No.2853 of 2015 (Arising out of SLP (C) No.7300 of 2012 (GDA & Ors Vs Krishna Grih Nirman Sahakari Sanstha) that if a person did not deposit the amount due in the stipulated time period then interest will be charged in accordance with the rules and also the compound interest be payable on the interest which become due for a stipulated time period. Copy of order is annexed as R-3. It is submitted that the GDA have to look after the maintenance of common area up till the possession of all the flats has not been taken over by its concerning allottees and residents' welfare association is not formed. It is submitted that there is provision of playground and park in the enclave therefore the allegation that there is no playground and park is denied. It is submitted that no extra amount is charged, the actual price, lease rent, maintenance charge all are specified -11- in the terms and conditions and the amount shown in the advertisement was approximate and provisional amount and it was mentioned that actual amount has to be paid before lease deed.
16. Since the complainant has given notice for cancellation of allotment on 28.09.2015, therefore, the allotment to the complainant has already been cancelled vide order dated 18.11.2015. A copy of order dated 18.11.2015 is already annexed by the complainant as Annexure A-14. It is therefore submitted that the complainant is not eligible for any relief as claimed and the complaint of the complainant deserves to be dismissed with costs. The opposite party GDA has filed affidavit of Ramniwas Sikarwar, Sampada Adhikari, GDA along with documents marked as R-1, R-2 and R-X, R-Y & R-Z.
17. We have heard complainant who appears in person and learned counsel for the opposite party and perused the record.
18. Complainant who appeared in person has reiterated the same facts as have been stated in the complaint that on different dates he had paid Rs.26,83,148/- including booking amount towards the flat in question. He argued that despite making payment there is no action on the part of the opposite party-GDA to construct and deliver the possession of the constructed flat whereas as per their assurance, they had to deliver the possession of the flat within 18 months from the date of registration but -12- there was no progress in construction of the flats. The complainant and other allottees preferred representation on 27.07.2015 agitating their grievances with respect to inordinate delay in completion of the project as well as unjust and unfair demands time and again but of no avail and therefore the complainant submitted another objection letter dated 10.09.2015 but no heed was paid. He argued that the brochure clearly indicates features/specialties such as closed campus, covered parking, playground and park in the premises, security-suvidha and distance from railway station as 1.5 km, however, the reality is far from the promises and representations made in the brochure. He argued that the opposite party-GDA has committed deficiency in service in charging excess amount, by way of increase in price, lease rent, maintenance charges etc. over and above the price mentioned in the brochure without any reasonable justification and explanation amounts to exploitation of the complainant.
19. He further argued that in the reply the opposite party-GDA has admitted that there is playground and park facility however, in the information sought by the complainant under RTI, the GDA has specifically stated that there is no provision for playground. He argued that in reply it is submitted that there is a covered parking which is contradictory to their letter wherein it is stated that parking space shall vest in the opposite -13- party, who has the right to use it as and when required and the complainant cannot even raise objections against it. He argued that the admission of the opposite party in reply to the complaint with their denial of the contents of the information received under RTI clearly establishes the misrepresentation, misleading advertisement and unfair trade practice on part of the opposite party-GDA. He argued that the opposite party has alleged that the Annexure A-2 is a forged document made by some process by the complainant himself and the complainant has not come before the Hon'ble Commission with clean hands is denied as the complainant is well aware of the fact that furnishing a forged document on affidavit as well as making false statement on affidavit before a Court of Law is a punishable offence.
20. He argued that the complainant for the reasons of inordinate and inexplicable delay in delivery of possession of flats coupled with blatant unfair trade practices, misrepresentations, cheating and false promises, the complainant sought refund of entire amount deposited with interest @ 18% p.a., compensation of Rs.2,00,000/- with costs of Rs.20,000/-. He argued that during sub-judice of the matter before the State Commission, the opposite party-GDA re-sold the subject flat C-506 for Rs.28,65,000/- therefore earned more benefits of Rs.1,85,000/- (28,65,000-26,80,000=1,85,000). He argued that the earned amount of -14- Rs.1,85,000/- must be refunded to the complainant as the opposite party-GDA cannot be allowed to retain profit margin when the case was pending for adjudication before this Commission. He relied upon a judgment of Hon'ble M. P. High Court dated 22.08.2022 passed in First Appeal No. 584 of 2021 wherein in para 37, Hon'ble High Court has held that "Under this circumstances, the provisions of Section 52 of the Transfer of Property Act is fully applicable and in such circumstances, the property in question sold by the respondent no.1 to the respondent nos. 2 & 3 registered on 04.10.2010 is itself void, ineffective and also against the interest and right of the appellant." He argued that the opposite parties have committed gross deficiency in service and unfair trade practice. He therefore prayed that the complaint be allowed.
21. On the other hand, learned counsel for the opposite parties argued that the complainant has voluntarily accepted the offer and registered himself to purchase a flat after fulfilling the application form. In condition no.7 of the application form, it is clearly mentioned that lease deed will be executed only after completion of building as also in condition no.10 it is specified that possession will be given only after depositing the complete amount as demanded by the GDA and after execution of lease deed. He argued that the complainant has not deposited the installment in the stipulated time period for which the complainant has to pay the interest -15- as per rules and conditions of the GDA for which letter was issued to the complainant but he did not deposit all the installments and interest amount and therefore his allotment for the flat was supposed to be cancelled by the GDA itself but did not cancel the allotment and gave a notice to the complainant dated 20.02.2015 (A-6) to deposit the installments with interest and thereafter the GDA cancelled the provisional allotment only after application for cancellation of allotment of flat filed by the complainant himself. He argued that in the conditions annexed with application form, in condition no.18 it is clearly mentioned that the cost of the flat is only provisional cost and actual cost will be decided only after completion of work and difference amount shall be payable before execution of agreement by the allottee. Also in condition no.7 it is stated that the cost of maintenance of the campus and parking cost would be decided by the GDA and that also to be borne by the allottee himself separately.
22. He argued that the complainant has not deposited the entire amount (including the actual amount and interest within stipulated time period). He placed reliance on the decision of Hon'ble Supreme Court in Civil Appeal No.2853 of 2015 arising out of SLP (C) No.7300 of 2012 vide order dated 13.03.2015 that if a person did not deposit the amount due in stipulated time period then interest will be charged in accordance with the rules and also the compound interest be payable on the interest which -16- become due for a stipulated time period. He argued that there was no misleading advertisement and false representation. He argued that the facilities as promised are available in the premises. No excess amount is charged from the complainant, the actual price, lease rent, maintenance charges specified in the advertisement was approximate and provisional amount and it has been clearly mentioned that actual amount has to be paid before lease deed.
23. He argued that on the request of cancellation of allotment of flat dated 28.09.2015 by the complainant the allotment was cancelled on 18.11.2015 and as per tripartite agreement executed between the complainant, GDA and the bank, the GDA returned the said amount to the bank after deducting 10% of the amount as per rules. Later 10% deducted amount was also deposited with the bank and the State Commission made a direction that the said 10% amount will be refundable to the GDA after decision of the case and till then, the bank kept that much amount in safe custody and only after order of this Commission will pay to the party to whom this Commission is directed. He argued that the complainant is also not entitled to get the amount of Rs.1,85,000/- by selling the questioned flat to another one. He argued that no deficiency in service or unfair trade practice has been committed by the opposite party-GDA and thus the complaint deserves to be dismissed with costs.-17-
24. After hearing learned counsel for the parties and on going through the complaint, documents, reply of opposite parties, affidavits, written arguments filed by the complainant and other evidentiary material on record we find that the complainant had booked flat in the scheme namely 'Bhau Sahib Potnis Enclave' launched by the opposite party-GDA in Gwalior. The complainant alleged deficiency in service, unfair trade practice in not providing facilities as assured as also in not completing the project in prescribed time limit and not giving the facilities as assured, therefore the complainant compelled to issue notice dated 28.09.2015 to the GDA seeking cancellation of allotment of flat and refund of amount deposited by him with interest @ 18% p.a. The complainant's request for cancellation of allotment of flat was accepted by the GDA and vide letter dated 18.11.2015 to the complainant informed him that in response to his demand the allotment order was cancelled. It was also informed that on presenting the original copies of Challan deposited amount shall be refunded to him as per rules. During the course of hearing, learned counsel for the complainant has moved an application seeking interim stay on the letter of cancellation of allotment of flat till final disposal of the complaint. This Commission after hearing parties vide order dated 27.01.2016 opined that in view of the letter dated 18.11.2015 issued by the GDA accepting the request made by the complainant for cancellation of -18- his allotment, no stay order can be passed especially in view of the fact that operation of the cancellation order has already been taken effect. Thereafter this Commission has held that the question remained for disposal of this complaint before this Commission is only about the amount to be refunded to complainant and if any interest is to be paid.
25. Thus the question for disposal of this complaint remained for our consideration in this complaint is:
1) Whether the amount to be refunded to the complainant and if any interest is to be paid on it?
26. From the record, we find that it is an admitted fact that the complainant had booked a 2 BHK flat in the Bhau Sahib Potnis Enclave, Gwalior, project launched by the opposite party GDA. The cost of the flat was shown as Rs.25,50,000/- which was to be paid in 6 installments of Rs.4,25,000/- each and the last installment was to be paid till 15.08.2014. The complainant was allotted flat no. C-506. It is alleged by the complainant that the opposite party-GDA vide letter dated 20.02.2015 (A-6) informed the complainant and made a demand that the cost of the flat was increased by Rs.1,30,000/-, lease rent charge Rs.2,680/-, stationery for one year Rs.200/-, service charge Rs.268/- and interest on installments. Thus the complainant had deposited total amount of Rs.26,83,148/- in total instead of Rs.25,50,000/- as total cost of the flat as -19- per advertisement. Here it is pertinent to mention that in condition no.7 of the application form, it is clearly mentioned that lease deed will be executed only after completion of building as also in condition no.10 it is specified that possession will be given only after depositing the complete amount as demanded by the GDA and after execution of lease deed. Also, in condition no.18 it is clearly mentioned that the cost of the flat is only provisional cost and actual cost will be decided only after completion of work and difference amount shall be payable before execution of agreement by the allottee. Also in condition no.8 it is stated that the cost of maintenance of the campus and parking cost would be decided by the GDA and that also to be bear by the allottee himself separately. Since the complainant did not deposit the installments in stipulated time period for which the complainant had to pay the interest as per rules and conditions of the GDA and therefore GDA has issued letter A-6 to deposit the installments and interest amount. Therefore, the allegation of the complainant that the opposite party-GDA made demand of increased price and other charges has not been accepted as the complainant himself defaulted in making payment of installments within stipulated time period. Even otherwise, the dispute regarding escalation of price is not maintainable before the Commissions constituted under the Consumer Protection Act.
-20-27. The complainant on 28.09.2015 had applied for cancellation of allotment of flat and thereafter filed complaint on 19.10.2015. Thereafter, the complainant's request for cancellation of allotment of flat was accepted by the GDA and vide letter dated 18.11.2015 to the complainant informed him that in response to his request the allotment order was cancelled. It was also informed that on presenting the original copies of challan deposited amount shall be refunded to him as per rules. During the course of pendency of complaint, the opposite party-GDA as per tripartite agreement between the complainant, GDA and the bank, refunded the cost of the flat as deposited by the complainant to the bank after deducting 10% of the amount as per rules. Later on the direction of this Commission, the GDA deposited the remaining 10% amount, however, this Commission directed the bank not to disburse the said amount to any of the parties till final disposal and only after directions of this Commission.
28. Since the complainant himself made a request for cancellation of allotment of flat and consequently the GDA cancelled the allotment, therefore, there is no question of not providing facilities as alleged to be provided by the GDA. But at the same time as discussed above, the complainant is also at fault and he did not pay the installments in time. The opposite party-GDA is a body who work on any project at different stages as and when they received the amount from the different allottees and if all -21- of them are at default in making payment of installments in time, delay in construction of flats must have occurred.
29. The complainant has filed certain documents obtained by him under RTI from the opposite party GDA. On perusal of those documents, we find that the completion certificate with regard to the aforesaid project had already been issued on 22.05.2015. Also from the letter no.GDA/2015/3167 dated 11.08.2015 of Executive Engineer, Division No.3, GDA addressed to Estate Officer, GDA it is clear that the construction work of flats under the scheme Bhau Sahib Potnis Phase 1 had already been completed and the flats were ready for possession. Thus we find that the complainant's allegation that there was no progress in construction work cannot be accepted more particularly when the construction was completed in May-2015 and the flats were ready for possession in the month of August-2015.
30. It is also pertinent to mention here that in the complaint the complainant has alleged cheating, the cases related to cheating are outside the purview of the Consumer Protection Act.
31. Be that as it may. However, since this Act is beneficiary for consumer, and since this Commission restricted the issue only with regard to whether the amount to be refunded to the complainant and if any interest is to be paid on it? Thus, in our considered view, the complainant -22- is entitled to get back the amount deposited by him i.e. Rs.26,83,148/- with the opposite party towards questioned flat with interest from the date of filing of complaint till the date of payment. Since the amount deposited by the complainant towards the flat had already been refunded by the GDA to the bank as per tripartite agreement, the complainant is entitled to only interest on the said amount from the date of filing of complaint till the date of refund of the amount.
32. So far as the claim of the complainant that the opposite party-GDA sold the questioned flat with profit of Rs.1,85,000/- and therefore he is entitled to get Rs.1,85,000/- is concerned, we find that once the complainant himself made a request to cancel the allotment of flat and the GDA cancelled the allotment of flat, therefore, the complainant is not entitled to get any benefit with regard to further sale of questioned flat.
33. In view of the above discussion considering the facts and circumstances of the matter, the consumer complaint is partly allowed and the opposite party-GDA is directed:
1) To pay interest @ 6% p.a. on the amount of Rs. 26,83,148/- deposited by the complainant with them from the date of filing of complaint till the date of refund of the amount of Rs.26,83,148/- within two months from the date of this order to the complainant.-23-
2) To pay Rs.5,000/- as costs of litigation to the complainant within a period of two months.
3) FDR so deposited with this Commission be returned to the complainant in terms of the order dated 06.10.2016 passed by Hon'ble National Commission in Revision Petitions No.2918-2924 of 2016.
All the interlocutory applications if pending stand disposed of.
(A .K. Tiwari) (Dr. Srikant Pandey) Acting President Member M. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BHOPAL PLOT NO.76, ARERA HILLS, BHOPAL CONSUMER COMPLAINT NO. 68 OF 2015 FILED ON 19.10.2015 DECIDED ON 07.10.2024 B. C. MISHRA S/O SHRI J. S. MISHRA, R/O HOUSE TYPE 3/8, K.V.1 CAMPUS, SHAKTI NAGAR,GWALIOR (M.P.) ... COMPLAINANT. VERSUS GWALIOR DEVELOPMENT AUTHORITY, THROUGH ITS CHIEF EXECUTIVE OFFICER, VIKAS BHAWAN, 1, RAVI NAGAR, GWALIOR (M.P.) ... OPPOSITE PARTY BEFORE : HON'BLE SHRI A. K. TIWARI : ACTING PRESIDENT HON'BLE DR. SRIKANT PANDEY : MEMBER COUNSEL FOR PARTIES: Complainant is present in person. Shri Ravi Jain, learned counsel for the opposite party. O R D E R (Passed On 07.10.2024)
The following order of the Commission was delivered by A. K. Tiwari, Acting President:
This complaint has been filed under Section 17 of the Consumer Protection Act, 1986 (for short 'Act').
2. Brief facts of the case as stated by the complainant are that the opposite party-Gwalior Development Authority (GDA) issued an advertisement regarding development of a project namely 'Bhau Sahib Potnis Enclave' behind MITS, Gwalior (hereinafter referred to as Enclave) -2- in the year 2013 for construction, development and allotment of flats. The advertisement stated that after paying Rs.1,000/- to the Bank of Baroda, the brochure, prospectus, and application form can be obtained. It is submitted by the complainant that the brochure emphasized closed campus, lifts, covered parking, playground and park in the premises of the enclave, security-suvidha, and distance from railway station as 1.5 km. On 14th March 2013, the initial registration of the flats commenced whereby the flats were allotted on the basis of lottery system and as per terms and conditions of the initial registration, the allottees were required to deposit 10% of the value/amount of the flats and the remaining amount of the decided value/amount of the flats to be deposited in 6 periodic installments. It is further submitted that at the time of inaugural ceremony of announcement of the scheme i.e. 17th April, 2013, Chief Executive Officer and Chairman of GDA made a declaration that the entire work of the enclave will be completed within a period of 18 months.
3. Being influenced by the scheme, the complainant applied for a 3BHK flat. The cost of 3 BHK flat was shown in brochure as Rs.31,50,000/- Interestingly, the complainant herein was allotted the same but at a higher price. The opposite party by a letter communicated the complainant that a 3BHK flat will cost Rs.32,50,000/- i.e. one lakh more than the price proposed in the brochure. The opposite party by a letter -3- communicated the complainant that a 3BHK flat will cost Rs.32,50,000/-. A letter of allotment outlining the method and manner of deposit of installments was issued to the complainant wherein it was stated that the last installment of the aforesaid amount should be deposited by 19th November 2014. Copy of scheduled letter no.2013/5577 dated 11.09.2013 is annexed as Annexure A-3. Upon enquiry raised by the complainant regarding arbitrary increase in price, the GDA cited application of revised circle rates as the reason for increase in price. It is submitted by the complainant that till 10.12.2014 he had deposited Rs.32,50,000/- including registration amount and the copies of challans are annexed as Annexure A-4. Further a tripartite agreement dated 12.11.2013 was executed between the complainant, the opposite party GDA and the State Bank of India, whereby it is made clear that the bank is providing housing loan to the complainant for the purpose of allotment of flat by GDA under its project. Copy of tripartite agreement dated 12.11.2013 is Annexure A-5.
4. It is alleged by the complainant that 18 months period for completion of project expired in September-2014 beginning from March-2013 but even after depositing all the installments within stipulated time period till December-2014 when the complainant deposited the last installment, the completion of the project was nowhere in sight. On 12th February 2015 the GDA allotted the flat numbers to various applicants by -4- adopting lottery process and the complainant was allotted flat no. A-506. Even at this point of time, there seemed to be no likelihood of the project being completed within a definite time frame. The GDA vide letter no. 2015/1513 dated 19.03.2015 (A-6) communicated to the complainant, to his surprise and utter dismay that he is required to pay the revised rates for allotted flat. The prices were revised and increased arbitrarily and unjustly, by increasing the cost of the flat by Rs.1,60,000/-, lease rent Rs.3,410/-, stationery charges Rs.200/-, service charges Rs.341/- and interest on installments Rs.6,790/- to be deposited before 27.03.2015. It is further submitted by the complainant that the complainant was constrained to meet the demands on dotted lines as required by the GDA and thus submitted an objection letter under protest on 27.03.2015. In addition to depositing the aforesaid amount under protest, the complainant also sought information regarding building material, cost of construction etc. as a justification for the revised amount. Representation dated 27.03.2015 (depositing revised amount under protest) is annexed as Annexure A-7.
5. Further the GDA vide letter No.BSP/estate/2015/2417 dated 07.07.2015 (A-8), informed the complainant that he has to deposit further sum of Rs.32,200/- as maintenance charges for 3 months Rs.4,200/- @ Rs.1400/- per month and Rs.28,000/- for yearly campus maintenance charges on or before 21 July 2015. The complainant disturbed and -5- exasperated by the indifference of the officials of the opposite towards the plight of the complainant and other allottees did not deposit the amount as requested. The complainant with other allottees preferred a representation dated 27.07.2015 before the officials of the opposite party agitating their grievances with respect to inordinate delay in completion of the project as well as unjust and unfair demands raised by the officials of the opposite party time and again but of no avail. Thereafter another representation dated 10.09.2015 was given but no heed was paid.
6. Eventually on 19th September 2015 DB Star, a supplement to Hindi Newspaper 'Dainik Bhaskar' published a news report wherein the PRO of GDA stated that no play ground is there in the project namely 'Bhau Sahab Potnis Enclave' Phase-1. To confirm the aforesaid fact, the complainant during his personal visit found that there is no space and provision for a park and playground within the enclave premises whereas in the brochure it has been specifically mentioned that there will be park and playground in the premises. Thereafter vide notice dated 28th September 2015, the complainant and other allottees sought refund of the amount deposited by them with the opposite party with interest on account of cheating, unfair trade practice and delay in possession.
7. It is alleged by the complainant that the opposite party-GDA ought to have fulfilleded the promises and representations made in the -6- brochure and by not providing playground and park they have committed deficiency in service. Also the opposite party has committed deficiency in service in charging excess amount by way of increase in price, lease rent, maintenance charges, etc over and above the price mentioned in the brochure without any reasonable justification and explanation which amounts to exploitation of the complainant especially when the complainant has deposited the entire amount as demanded within the stipulated period of time. It is submitted that these practices of the opposite party are done with the motive of profit mongering and has caused immense trauma and harassment to the complainant.
8. After seeking permission from this Commission, the complainant amended the complainant on 28.07.2023 and has stated that the opposite party without waiting the decision of Hon'ble Commission sold/leased out the flat no. A-506 to other person. The complainant has paid the full and final amount of Rs.34,20,941/- (In fact it is Rs34,20,741/-). It is submitted that pending adjudication of the matter the opposite party-GDA re-sold the flat A-506 for Rs.39,61,000/- therefore earned more benefits of Rs.5,51,000/- (39,61,000-34,10,000=5,51,000).
9. The complainant therefore alleging deficiency in service on part of opposite party-GDA has filed the present complaint seeking refund of entire price deposited by him i.e. Rs.34,20,741/- with interest @ 18% -7- p.a. to be calculated from the date of different deposits. Rs.50,000/- as compensation for deficiency in service and unfair trade practice and Rs.20,000/- as costs. Also by amending the complaint, the complainant sought the earn profit margin of Rs.5,61,000/- (in fact it should be Rs.5,51,000) which have been collected by the GDA by re-selling the disputed flat to someone else. The complainant has filed his affidavit and documents A-1 to A-23.
10. The opposite party has filed reply wherein they have admitted certain facts and declined certain facts. It is admitted that GDA offered two kinds of flats and emphasized that it is a closed campus, lift, covered parking, playground, park and also the security service is available in the premises but it is denied that it was emphasis that the distance of campus from the Railway Station is only 1.5km. It is also denied that Annexure A-2 was published by GDA, it is submitted that the A-2 is a forged document made by some process by the complainant himself which is clear from the A-1 filed by the complainant himself on which distance from Railway Station is stated as 3KM and actually the distance from Railway Station is near about 3KM which is stated on Annexure A-1. Therefore, it is clear that the complainant has not come with clean hands.-8-
11. It is submitted that at the time of inaugural ceremony held on 17.04.2013, no dignity has announced about completion of work within stipulated time period. In the conditions enclosed with the application form, condition no.7 clearly stated that the lease deed will be executed only after completion of building and at condition no.10 it was stated that possession will be given only after depositing the complete amount as demanded by GDA and also after execution of lease deed. It is also submitted that the complainant did not deposit the installments in the stipulated time period for which the complainant has to pay the interest in accordance with the rules and conditions of GDA for which letter was issued to the complainant but he did not deposit all the installments and interest amount, therefore, his allotment for the concerned flat was supposed to be cancelled but the GDA itself did not cancel the allotment and gave a notice no.5577 dated 11.09.2013 (A-3) and again the letter number 3513 dated 12.11.2014 (R-1) to file ID proof and caste certificate and to deposit the remaining installment. The GDA cancelled the provisional allotment only after application for cancelation of allotment filed by the complainant himself (A-10).
12. It is submitted that allotment for 3BHK flat was registered for the complainant but the cost of the flat was written as provisional and not actual. It was also stated in the conditions annexed with the form in -9- condition no.18 that the cost/rate is only provisional cost and the actual cost will be decided after completion of work and difference amount shall be payable before execution of agreement by the allottee. It is also mention in Annexure A-3 in condition no.2, that the actual cost shall be decided after completion of work and also in condition no.7 it is stated that the cost of maintenance of the campus and parking cost would be decided by the GDA and that also to be borne by the allottee himself/herself separately.
13. It is submitted that the chart given by the complainant is admitted but from the chart itself, it is clear that the complainant did not deposit fifth and sixth installments in the stipulated time period which is evident from copies of challan filed by the complainant (A-4) and for which the letter was issued to the complainant to deposit difference of actual cost, remaining installment, lease rent of 1 year, stationery charge, service charge and interest on 19.03.2015 which is annexed by the complainant as A-6. It is submitted that such a big project takes time for its completion because of so many hurdles comes in the way, therefore, in the regulations and conditions it was made clear that the possession would be given only after completion of work. It is admitted that the opposite party sent a letter A-6 dated 19.03.2015 as after completion cost was higher than the provisional cost as the complainant was apprised of this fact vide -10- conditions attached to the application form as well as vide Annexure A-3 that actual cost would be payable before executing the lease deed.
14. It is admitted that the complainant filed an application A-7 on 27.03.2015 but it is to mention here that the GDA sent just and proper demand note dated 19.03.2015 (A-6). The complainant did not deposit the entire amount (including the actual cost amount and interest within stipulated time period). It is also admitted that letter dated 07.07.2015 (Annexure A-8) was sent to the complainant in accordance with the rules and conditions which were proper but the complainant did not comply with the conditions.
15. It is submitted that Hon'ble Supreme Court in Civil Appeal No.2853 of 2015 (Arising out of SLP (C) No.7300 of 2012 (GDA & Ors Vs Krishna Grih Nirman Sahakari Sanstha) that if a person did not deposit the amount due in the stipulated time period then interest will be charged in accordance with the rules and also the compound interest be payable on the interest which become due for a stipulated time period. Copy of order is annexed as R-2. It is submitted that the GDA have to look after the maintenance of common area up till the possession of all the flats has not been taken over by its concerning allottees and residents' welfare association is not formed. It is submitted that there is provision of playground and park in the enclave therefore the allegation that there is no -11- playground and park is denied. It is submitted that no extra amount is charged, the actual price, lease rent, maintenance charge all are specified in the terms and conditions and the amount shown in the advertisement was approximate and provisional amount and it was mentioned that actual amount has to be paid before lease deed.
16. Since the complainant has given notice for cancellation of allotment on 28.09.2015, therefore, the allotment to the complainant has already been cancelled vide order dated 09.10.2015. A copy of order dated 09.10.2015 is already annexed by the complainant as Annexure A-14. It is therefore submitted that the complainant is not eligible for any relief as claimed and the complaint of the complainant deserves to be dismissed with costs. The opposite party GDA has filed affidavit of Ramniwas Sikarwar, Sampada Adhikari, GDA along with documents marked as R-1 to R-2.
17. We have heard complainant who appears in person and learned counsel for the opposite party and perused the record.
18. Complainant who appeared in person has reiterated the same facts as have been stated in the complaint that on different dates he had paid Rs.34,20,741/- including booking amount towards the flat in question. He argued that despite making payment there is no action on the part of the opposite party-GDA to construct and deliver the possession of the -12- constructed flat whereas as per their assurance, they had to deliver the possession of the flat within 18 months from the date of registration but there was no progress in construction of the flats. The complainant and other allottees preferred representation on 27.07.2015 agitating their grievances with respect to inordinate delay in completion of the project as well as unjust and unfair demands time and again but of no avail and therefore the complainant submitted another objection letter dated 10.09.2015 but no heed was paid. He argued that the brochure clearly indicates features/specialties such as closed campus, covered parking, playground and park in the premises, security-suvidha and distance from railway station as 1.5 km, however, the reality is far from the promises and representations made in the brochure. He argued that the opposite party-GDA has committed deficiency in service in charging excess amount, by way of increase in price, lease rent, maintenance charges etc. over and above the price mentioned in the brochure without any reasonable justification and explanation amounts to exploitation of the complainant.
19. He further argued that in the reply the opposite party-GDA has admitted that there is playground and park facility however, in the information sought by the complainant under RTI, the GDA has specifically stated that there is no provision for playground. He argued that in reply it is submitted that there is a covered parking which is contradictory to their -13- letter wherein it is stated that parking space shall vest in the opposite party, who has the right to use it as and when required and the complainant cannot even raise objections against it. He argued that the admission of the opposite party in reply to the complaint with their denial of the contents of the information received under RTI clearly establishes the misrepresentation, misleading advertisement and unfair trade practice on part of the opposite party-GDA. He argued that the opposite party has alleged that the Annexure A-2 is a forged document made by some process by the complainant himself and the complainant has not come before the Hon'ble Commission with clean hands is denied as the complainant is well aware of the fact that furnishing a forged document on affidavit as well as making false statement on affidavit before a Court of Law is a punishable offence.
20. He argued that the opposite party GDA did not reply to representation dated 27.07.2015 and 10.09.2015. He alleged that he filed complaint on 19.10.2015 and cancellation of allotment in fact was done on 30.10.2015 and the CEO signed the same on 09.10.2015 in back date. He argued that the complainant for the reasons of inordinate and inexplicable delay in delivery of possession of flats coupled with blatant unfair trade practices, misrepresentations, cheating and false promises, the complainant sought refund of entire amount deposited with interest @ 18% -14- p.a., compensation of Rs.2,00,000/- with costs of Rs.20,000/-. He argued that during sub-judice of the matter before the State Commission, the opposite party-GDA sold the subject flat re-sold the flat A-506 for Rs.39,61,000/- therefore earned more benefits of Rs.5,51,000/- (39,61,000-34,10,000=5,51,000). He argued that the earned amount of Rs.5,51,000/- must be refunded to the complainant as the opposite party-GDA cannot be allowed to retain profit margin when the case was pending for adjudication before this Commission. He relied upon a judgment of Hon'ble M. P. High Court dated 22.08.2022 passed in First Appeal No. 584 of 2021 wherein in para 37, Hon'ble High Court has held that "Under this circumstances, the provisions of Section 52 of the Transfer of Property Act is fully applicable and in such circumstances, the property in question sold by the respondent no.1 to the respondent nos. 2 & 3 registered on 04.10.2010 is itself void, ineffective and also against the interest and right of the appellant." He argued that the opposite parties have committed gross deficiency in service and unfair trade practice. He therefore prayed that the complaint be allowed.
21. On the other hand, learned counsel for the opposite parties argued that the complainant has voluntarily accepted the offer and registered himself to purchase a flat after fulfilling the application form. In condition no.7 of the application form, it is clearly mentioned that lease -15- deed will be executed only after completion of building as also in condition no.10 it is specified that possession will be given only after depositing the complete amount as demanded by the GDA and after execution of lease deed. He argued that the complainant has not deposited the installment in the stipulated time period for which the complainant has to pay the interest as per rules and conditions of the GDA for which letter was issued to the complainant but he did not deposit all the installments and interest amount and therefore his allotment for the flat was supposed to be cancelled by the GDA itself but did not cancel the allotment and gave a notice to the complainant dated 19.03.2015 (A-6) to deposit the installments with interest and thereafter the GDA cancelled the provisional allotment only after application for cancellation of allotment of flat filed by the complainant himself. He argued that in the conditions annexed with application form, in condition no.18 it is clearly mentioned that the cost of the flat is only provisional cost and actual cost will be decided only after completion of work and difference amount shall be payable before execution of agreement by the allottee. Also in condition no.7 it is stated that the cost of maintenance of the campus and parking cost would be decided by the GDA and that also to be borne by the allottee himself separately.
22. He argued that the complainant has not deposited the entire amount (including the actual amount and interest within stipulated time -16- period). He placed reliance on the decision of Hon'ble Supreme Court in Civil Appeal No.2853 of 2015 arising out of SLP (C) No.7300 of 2012 vide order dated 13.03.2015 that if a person did not deposit the amount due in stipulated time period then interest will be charged in accordance with the rules and also the compound interest be payable on the interest which become due for a stipulated time period. He argued that there was no misleading advertisement and false representation. He argued that the facilities as promised are available in the premises. No excess amount is charged from the complainant, the actual price, lease rent, maintenance charges specified in the advertisement was approximate and provisional amount and it has been clearly mentioned that actual amount has to be paid before lease deed.
23. He argued that on the request of cancellation of allotment of flat dated 28.09.2015 by the complainant the allotment was cancelled on 09.10.2015 and as per tripartite agreement executed between the complainant, GDA and the bank, the GDA returned the said amount to the bank after deducting 10% of the amount as per rules. Later 10% deducted amount was also deposited with the bank and the State Commission made a direction that the said 10% amount will be refundable to the GDA after decision of the case and till then, the bank kept that much amount in safe custody and only after order of this Commission will pay to the party to -17- whom this Commission is directed. He argued that the complainant is also not entitled to get the amount of Rs.5,51,000/- by selling the questioned flat to another one. He argued that no deficiency in service or unfair trade practice has been committed by the opposite party-GDA and thus the complaint deserves to be dismissed with costs.
24. After hearing learned counsel for the parties and on going through the complaint, documents, reply of opposite parties, affidavits, written arguments filed by the complainant and other evidentiary material on record we find that the complainant had booked flat in the scheme namely 'Bhau Sahib Potnis Enclave' launched by the opposite party-GDA in Gwalior. The complainant alleged deficiency in service, unfair trade practice in not providing facilities as assured as also in not completing the project in prescribed time limit and not giving the facilities as assured, therefore the complainant compelled to issue notice dated 28.09.2015 to the GDA seeking cancellation of allotment of flat and refund of amount deposited by him with interest @ 18% p.a. The complainant's request for cancellation of allotment of flat was accepted by the GDA and vide letter dated 09.10.2015 to the complainant informed him that in response to his demand the allotment order was cancelled. It was also informed that on presenting the original copies of Challan deposited amount shall be -18- refunded to him as per rules. During the course of hearing, learned counsel for the complainant has moved an application seeking interim stay on the letter of cancellation of allotment of flat till final disposal of the complaint. This Commission after hearing parties vide order dated 27.01.2016 opined that in view of the letter dated 09.10.2015 issued by the GDA accepting the request made by the complainant for cancellation of his allotment, no stay order can be passed especially in view of the fact that operation of the cancellation order has already been taken effect. Thereafter this Commission has held that the question remained for disposal of this complaint before this Commission is only about the amount to be refunded to complainant and if any interest is to be paid.
25. Thus the question for disposal of this complaint remained for our consideration in this complaint is:
1) Whether the amount to be refunded to the complainant and if any interest is to be paid on it?
26. From the record, we find that it is an admitted fact that the complainant had booked a 3 BHK flat in the Bhau Sahib Potnis Enclave, Gwalior, project launched by the opposite party GDA. The cost of the flat was shown as Rs.32,50,000/- which was to be paid in 6 installments of Rs.5,42,000/- each and the last installment was to be paid till 19.11.2014. The complainant was allotted flat no. A-506. It is alleged by the -19- complainant that the opposite party-GDA vide letter dated 19.03.2015 (A-6) informed the complainant and made a demand that the cost of the flat was increased by Rs.1,60,000/-, lease rent charge Rs.3,410/- and interest on installments. Thus the complainant had deposited total amount of Rs.34,20,741/- in total instead of Rs.32,50,000/- as total cost of the flat as per advertisement. Here it is pertinent to mention that in condition no.7 of the application form, it is clearly mentioned that lease deed will be executed only after completion of building as also in condition no.10 it is specified that possession will be given only after depositing the complete amount as demanded by the GDA and after execution of lease deed. Also, in condition no.18 it is clearly mentioned that the cost of the flat is only provisional cost and actual cost will be decided only after completion of work and difference amount shall be payable before execution of agreement by the allottee. Also in condition no.8 it is stated that the cost of maintenance of the campus and parking cost would be decided by the GDA and that also to be bear by the allottee himself separately. Since the complainant did not deposit the installments in stipulated time period for which the complainant had to pay the interest as per rules and conditions of the GDA and therefore GDA has issued letter A-6 to deposit the installments and interest amount. Therefore, the allegation of the complainant that the opposite party-GDA made demand of increased price -20- and other charges has not been accepted as the complainant himself defaulted in making payment of installments within stipulated time period which is evident from his complaint itself. Even otherwise, the dispute regarding escalation of price is not maintainable before the Commissions constituted under the Consumer Protection Act.
27. The complainant on 28.09.2015 had applied for cancellation of allotment of flat and his request for cancellation of allotment of flat was accepted by the GDA and vide letter dated 09.10.2015 to the complainant informed him that in response to his request the allotment order was cancelled. Thereafter the complainant has filed the complaint on 19.10.2015. It was also informed that on presenting the original copies of challan deposited amount shall be refunded to him as per rules. During the course of pendency of complaint, the opposite party-GDA as per tripartite agreement between the complainant, GDA and the bank, refunded the cost of the flat as deposited by the complainant to the bank after deducting 10% of the amount as per rules. Later on the direction of this Commission, the GDA deposited the remaining 10% amount, however, this Commission directed the bank not to disburse the said amount to any of the parties till final disposal and only after directions of this Commission.
28. Since the complainant himself made a request for cancellation of allotment of flat and consequently the GDA cancelled the allotment, -21- therefore, there is no question of not providing facilities as alleged to be provided by the GDA. But at the same time as discussed above, the complainant is also at fault and he did not pay the installments in time. The opposite party-GDA is a body who work on any project at different stages as and when they received the amount from the different allottees and if all of them are at default in making payment of installments in time, delay in construction of flats must have occurred.
29. The complainant has filed certain documents obtained by him under RTI from the opposite party GDA. On perusal of those documents, we find that the completion certificate with regard to the aforesaid project had already been issued on 22.05.2015. Also from the letter no.GDA/2015/3167 dated 11.08.2015 of Executive Engineer, Division No.3, GDA addressed to Estate Officer, GDA it is clear that the construction work of flats under the scheme Bhau Sahib Potnis Phase 1 had already been completed and the flats were ready for possession. Thus we find that the complainant's allegation that there was no progress in construction work cannot be accepted more particularly when the construction was completed in May-2015 and the flats were ready for possession in the month of August-2015.
30. Also on complainant's request dated 28.09.2015, allotment of flat was cancelled by the GDA on 09.10.2015 and the complainant has -22- filed the complaint on 19.10.2015 when he was no more consumer of the opposite party. If the complainant did not make any request to cancel the allotment of flat and took possession of the flat and alleged excess increase in price, defective construction, not providing the facilities as assured the position would have been different. So far as the argument of complainant that the allotment of flat was cancelled in back date cannot be accepted as the complainant failed to prove the same by way of any documentary evidence on record.
31. It is also pertinent to mention here that in the complaint the complainant has alleged cheating, the cases related to cheating are outside the purview of the Consumer Protection Act.
32. Be that as it may. However, since this Act is beneficiary for consumer, and since this Commission restricted the issue only with regard to whether the amount to be refunded to the complainant and if any interest is to be paid on it? Thus, in our considered view, the complainant is entitled to get back the amount deposited by him i.e. Rs.34,20,741/- with the opposite party towards questioned flat with interest from the date of filing of complaint till the date of payment. Since the amount deposited by the complainant towards the flat had already been refunded by the GDA to the bank as per tripartite agreement, the complainant is entitled to only -23- interest on the said amount from the date of filing of complaint till the date of refund of the amount.
33. So far as the claim of the complainant that the opposite party-GDA sold the questioned flat with profit of Rs.5,51,000/- and therefore he is entitled to get Rs.5,51,000/- is concerned, we find that once the complainant himself made a request to cancel the allotment of flat and the GDA cancelled the allotment of flat, therefore, the complainant is not entitled to get any benefit with regard to further sale of questioned flat.
34. In view of the above discussion considering the facts and circumstances of the matter, the consumer complaint is partly allowed and the opposite party-GDA is directed:
1) To pay interest @ 6% p.a. on the amount of Rs. 34,20,741/- deposited by the complainant with them from the date of filing of complaint till the date of refund of the amount of Rs.34,20,741/- within two months from the date of this order to the complainant.
2) To pay Rs.5,000/- as costs of litigation to the complainant within a period of two months.
3) FDR so deposited with this Commission be returned to the complainant in terms of the order dated 06.10.2016 passed by Hon'ble National Commission in Revision Petitions No.2918-2924 of 2016.
All the interlocutory applications if pending stand disposed of.
(A .K. Tiwari) (Dr. Srikant Pandey) Acting President Member