State Consumer Disputes Redressal Commission
Rajesh Kumar Khurana vs Ansal Lotus Melange Projects Pvt. Ltd. on 5 December, 2017
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
Consumer Complaint No. 219 of 2017
Date of Institution : 11.04.2017
Date of Reserve : 29.11.2017
Date of Decision : 05.12.2017
1. Rajesh Kumar Khurana S/o Ajit Kumar Khurana and
2. Harpreet Kaur W/o Sh. Rajesh Kumar Khurana
Both ae R/o Flat No. 702, Tower No. 6, Orchard County,
Sector 115, Kharar-Landran Road, Mohali, through their
common Power of Attorney Holder of Sh. Ajit Kumar Khurana
S/o Sh. Guranditta Ram R/o Flat No. 702, Tower No. 6,
Orchard County, Sector 115, Kharar-Landran Road, Mohali
....Complainants
Versus
1. Ansal Lotus Melange Projects Pvt. Ltd., Registered Office at
1/18B, Asaf Ali Road, New Delhi 110 002 through its Managing
Director.
2. Ansal Lotus Melange Projects Pvt. Ltd., Regional Office at
SCO No. 183-184, Sector 9-C, Chandigarh, through its Assistant
Manager/Authorized Representative.
....Opposite parties
Consumer Complaint under Section 17 of
the Consumer Protection Act, 1986.
Consumer Complaint No. 219 of 2017 2
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member.
Shri Rajinder Kumar Goyal, Member
Present:-
For the complainants : Sh. R.P. Singh, Advocate
For opposite parties No.1&2: Ex.-parte
GURCHARAN SINGH SARAN, PRESIDING JUDICIAL MEMBER
ORDER
Complainant have filed this complaint against the opposite party (hereinafter referred as Op) under Section 12 read with Section 17 of the Consumer Protection Act, 1986 (for short the Act) on the averments that it is being filed through their father/father-in-law and power of attorney holder Sh. Ajit Kumar Khurana s/o Sh. Guranditta Ram, R/o Flat No. 702, Tower No. 6, Orchard County, Sector 115, Kharar-Landran Road, Mohali. It has been stated in the complaint that Ops come up with a residential project in the area in 2006 under the name and style as 'Orchard County', Sector 115, situated on Kharar-Landran Road, Distt. Mohali and gave wide publication for residential flats/units of 2 BHK, 3 BHK, 3+1 BHK and Penthouse and brochure was also got published and shown to the complainant stating the location of the project. The complainant with an intention to settle near Chandigarh applied for 3 BHK flat with Ops vide application dated 12.9.2011 at a basic price of Rs. 2303/- per sq. ft., which comes to Rs. 39,17,403/- and in addition to that a sum of Rs. 1,00,000/- was Consumer Complaint No. 219 of 2017 3 paid for car parking and Rs. 45,000/- for club membership with a total price of Rs. 40,62,403/-. Complainant paid a sum of Rs. 50,000/- on 30.8.2011, Rs. 4,00,000/- on 6.9.2011. It was further stated by the Ops that the possession of the flat will be delivered within a period of 24 to 30 months as per the terms and conditions of the allotment attached with the allotment letter dated 19.9.2011 vide which apartment No. 702, 3 BHK, 7th floor, Tower 6th with super area 1701 sq. ft. with basic price of Rs. 39,17,403/- was executed between the parties. The complainant had raised a loan of Rs. 31,33,922/- from HDFC Bank and rest of the payments were made by the complainants from their own sources. The complainants paid the following amount:-
Sr. No. Particulars Amount (in Rs.)
1. Booking Amount vide receipt dated 50,000/-
30.8.2011
2. Balance of Booking Amount vide receipt 4,00,000/-
dated 6.9.2011
3. Balance of Booking Amount + Service Tax 1,52,741/-
vide receipt dated 12.9.2011
4. Disbursement from HDFC Bank on 9,40,997/-
20.10.2011
5. Disbursement/Adjustment by HDFC from 2,34,224/-
Ansal against Pre-EMI Interest on
20.10.2011
6. Service Tax on BSP vide receipt dated 30,262/-
8.11.2011
7. Disbursement from HDFC Bank on 9,05,798/-
14.2.2013
8. Disbursement from HDFC Bank on 73,553/-
14.2.2013
9. Car Parking and Club Membership along 1,49,481/-
with Service Tax vide receipt dated
19.7.2013
10. Balance Amount vide receipt dated 30,262/-
1.10.2013
11. Disbursement from HDFC Bank vide 7,83,481/-
receipt dated 18.12.2013
12. Installment along with Service Tax vide 24,210/-
receipt dated 24.12.2013
13. Installment along with Service Tax vide 2,28,593/-
receipt dated 29.7.2014
14. Disbursement from HDFC Bank vide 1,95,869/-
receipt dated 1.8.2014
Consumer Complaint No. 219 of 2017 4
15. Installment along with Service Tax vide 60,541/-
receipt dated 27.1.2015
16. Installment along with Service Tax vide 37,000/-
receipt dated 14.2.2015
Total Rs. 42,97,012/-
However, Ops issued the possession letter dated 14.4.2014 in which super area of the flat was increased from 1701 to 1752 sq. ft. and demanded an increased amount of Rs. 1,17,453/- and Service Tax @ 12% per annum but at that point of time recreational facilities like swimming pool, club house green park were not completed, therefore, the offer was only a paper possession and they have also not obtained the occupation certificate. Due to this reason, the complainants have not taken the possession. However, when Ops gave threat for heavy penalty, they took the possession on 22.7.2015. The Ops were liable to reimburse the complainants for pre-EMIs from November, 2013 to July, 2015 amounting to Rs. 2,05,770/-. Then a sum of Rs. 20,000/- was claimed as Infrastructure Development Charges outside the scope of the terms and conditions of the allotment. In case the possession has been delivered beyond 30 months then the complainants is entitled to interest @ 12% on the deposited amount. Alleging deficiency in service on the part of Ops, complainant has sought direction for refund of a sum of Rs. 1,17,453/- plus service tax alongwith interest @ 12% p.a., to refund the amount of the super area, if found less than 1701 sq. ft., to pay pre-EMI interest Rs. 2,05,770/- paid by the complainants to the HDFC Bank, pay back infrastructural development charges of Rs. 20,000/- plus Service Tax alongwith Consumer Complaint No. 219 of 2017 5 interest @ 12% p.a., compensation of Rs. 3,00,000/- and litigation expenses of Rs. 30,000/-.
2. Notice was issued to the Ops, however, notice were not received back within a period of 30 days, therefore, raising presumption of service of Ops, Ops were proceeded against ex- parte vide order dated 1.6.2017.
3. In the ex-parte evidence, the complainants have tendered affidavit of Ajit Kumar Khurana Ex. C-A and documents Exs. C-1 to C-11.
4. We have heard the learned counsel for the complainants Mr. R.P. Singh, Advocate and have carefully gone through the averments made in the complaint and evidence on the record.
5. It has been argued by the counsel for the complainants that as per the application form Ex. C-2, the tentative area of the flat has been mentioned as 1701 sq. ft. and in the allotment letter Ex. C-4 again it is mentioned as approximately super area 1701 sq. ft. However, offer of possession of the flat was issued by Ops on 14.4.2014 in which it has been mentioned as 1752 sq. ft. and for that payment has already been made by the complainants. It has been further argued by the counsel for the complainants that area is even less than 1700 sq. ft. He has referred to the report of Sujay Sengupta, Assistant Prof. CCA, Chandigarh in which he has mentioned the super built area 1612.25 sq. ft. However, the details of the super area, which was taken by Mr. Sujay Sengupta has not been explained. Normally the super area is taken by taking the Consumer Complaint No. 219 of 2017 6 common area divided by number of flats and added in the plinth area of the flat. Therefore, without any measurement or dimensions in the report, it is very difficult to say that the super up area is less than just 1752 sq. ft., therefore, it cannot be said that Ops charged excess from the complainants instead of area actually delivered to the complainants. In case the complainants has not been able to prove that super area delivered to him is less for which charges have been taken from him then he is not entitled to any amount under that head.
6. The complainants have further sought that as per terms and conditions of the allotment, the Ops were bound to deliver the possession within a period of 24 to 30 months. For ready reference, Condition No. 11 of the terms and conditions of the allotment is reproduced as under:-
"11. The Company shall endeavour to give the possession of the unit to the intending allottee(s) within 24 to 30 months subject to force majeure circumstances and on receipt of all payments as per installment plan from the date of booking and on receipt of complete payment of the basic sale price and other charges due and payable up to the date of possession according to the payment plan applicable to him/her. The Company on completion of the construction shall issue final call notice to the intending allottee(s), who shall within 30 days thereof, remit all dues and take possession of the unit. In the event of his/her failure to take possession for any reason whatsoever, he/she shall be Consumer Complaint No. 219 of 2017 7 deemed to have taken possession of the allotted unit and shall bear all maintenance charges and any other levies on account of the allotted unit."
It is signed on 12.9.2011. In case 30 months have taken from that date, it will come on 12.3.2014. However, the offer of possession letter was issued by the Ops on 14.4.2014. However, there is correspondence between the complainant and Ops by way of email Ex. C-9, which refers about the clearance of the account before delivery of the possession and after that the question of NOC or any major facility is incomplete that will be considered. Therefore, in case the complainant himself has taken the time to complete the formalities then it cannot be said that Ops were not ready with the delivery of the possession of the flat. In the complaint, it has been stated that occupation certificate was not taken by the Ops, therefore, he had not taken the possession of the flat. However, in the correspondence between the parties and emails Ex. C-9, there is no reference of getting the completion certificate. Therefore, the delay is just one month for delivery of the possession for which the complainant will be entitled to late delivery possession charges. As per the terms and conditions of the allotment letter, in case the possession is not taken by the complainant within a period of 30 days then there will be holding charges @ Rs. 5/- per sq. ft. The same proposition will apply to the Ops in case there is delay in delivery of the possession then they will pay late delivery charges @ Rs. 5/- per sq. ft. for the delayed period, therefore, the Ops will Consumer Complaint No. 219 of 2017 8 pay late delivery possession charges for one month @ Rs. 5/- per sq. ft. per month on the super area of the flat i.e. 1752 sq. ft.
7. It has been argued by the counsel for the complainants that Ops were to pay pre-EMI interest to the bank upto the date of delivery of the possession, whereas they have stopped to pay the interest from October, 2013, therefore, from November, 2013 to July, 2015, it comes to Rs. 2,05,770/-, which has not been paid by the Ops. During the course of arguments, it was admitted by the counsel for the complainants that tripartite agreement was executed between the complainants, Ops and the Bank but that agreement has not come on the record upto which date the pre- EMI interest was to be paid by the Ops without it, it cannot be determined how much pre-EMI interest is to be paid by the Ops. Therefore, in the absence of tripartite agreement on the record, it cannot be said upto which date, Ops were to pay pre-EMI interest. It has been stated by the complainant in para No. 8 of the complaint that from November, 2013 to July, 2015, pre-EMI interest has not been paid by the Ops but no official of the Bank has been examined by the complainants upto which date pre-EMI interest has been paid by the Ops to the Bank. Counsel for the complainants has referred to statements Ex. C-8 but from Ex. C-8, it is not clear who paid pre-EMI interest, otherwise, it has been paid upto September, 2014. In case it is taken that the Ops were to pay the pre-EMI interest upto the date of possession. Offer of possession was given on 14.4.2014 alongwith that letter they had stated that from the date of issuance of this letter, assumed liability Consumer Complaint No. 219 of 2017 9 of the Company to pay EMI till offer of possession to the bank as agreed mutually comes to an end, which shows that they stopped to pay the pre-EMI interest from 14.4.2014. It shows that upto that date, they had paid pre-EMI interest to the complainant, therefore, the counsel for the complainant has not been able to prove that Ops were defaulter in paying pre-EMI interest to the bank.
8. It has been stated that Rs. 20,000/- plus Service Tax was charged by the Ops from the complainant as Infrastructural Development Charges (IDC), which was not part of the letter of allotment, it is clear from the schedule of payment attached with the agreement. The detail of payments made by the complainants has been referred in para No. 5 of the complaint, which shows that no payment has been made by the complainants towards IDC, otherwise, he has not produced any receipt on the record vide which a sum of Rs. 20,000/- has been paid by the complainants towards IDC.
9. However, excess amount has been received from the complainants. As per the table given above, a sum of Rs. 42,97,012/- has been paid by the complainants whereas the amount required to be paid by the complainants is as under:-
Basic Sale price of flat Rs. 39,17,403/- C-4 1701 Sq. ft. X Rs. 2303 per sq. ft.
Car parking charges Rs. 1,00,000/- C-4
Club Membership Charges Rs. 45,000/- C-4
Service Tax Rs. 88,354/- C-5
(15131 +
30262 + 3090
+ 1391 + 907 +
23484 + 726 +
Consumer Complaint No. 219 of 2017 10
6851 + 1815 +
4697)
IDC (Infrastructure Development Rs. 20,000
Charges) This amount complainants are
claiming refund as not mentioned in
Agreement C-4
Increase in Super Area by 51 sq. ft. Rs. 1,17,453/- C-6
(1752 - 1701) 51 x 2303
Total amount as per Ops after increased Rs. 42,88,210/- area and IDC Whereas they have claimed Rs. 42,97,012/-, whereas IDC of Rs. 20,000/- was not payable. In this way, they claimed Rs. 28,802/- as excess amount from the complainants. There is no rebuttal to this proposition as Ops are ex-parte.
10. No other point was argued.
11. Sequel to the above, we partly accept the complaint. The Ops are directed to pay late delivery possession charges @ Rs. 5/- per sq. ft. for a period of one month on super area of 1752 sq. feet plus pay Rs. 28,802/- charged as excess amount from the complainants. They are further directed to pay Rs. 5,000/- as lumpsum compensation and litigation expenses.
12. The above directions be complied by the Ops within a period of 45 days from the date of receiving of the copy of the order, failing which the complainants shall be at liberty to execute the order by filing application under Sections 25 & 27 of the CP Act against the Ops.
13. The consumer complaint could not be decided within the statutory period due to heavy pendency of Court cases. Consumer Complaint No. 219 of 2017 11
14. Order be communicated to the parties as per rules.
(GURCHARAN SINGH SARAN) PRESIDING JUDICIAL MEMBER (RAJINDER KUMAR GOYAL) MEMBER December 05, 2017.
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