State Consumer Disputes Redressal Commission
Renu Katyal vs Janta Land Promoters Ltd. on 3 May, 2018
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
Consumer Complaint No. 548 of 2017
Date of Institution : 10.07.2017
Date of Reserve : 24.04.2018
Date of Decision : 03.05.2018
1. Mrs. Renu Katyal W/o Sh. Ashok Kumar Katyal, R/o #B-10,
Jungpura Extension, First Floor, New Delhi-14.
2. Mrs. Meenakshi Nijhawan w/o Sh. Mahesh Kumar, R/o #B-
10, Jungpura Extension, First Floor, New Delhi-14.
....Complainants
Versus
Janta Land Promoter Limited, a Company incorporated under the
provision of (Indian) Companies Act, 1956 and having its
Registered Office at Kothi No. 538, Phase-X, Mohali and Corporate
Office at SCO 39-40, Sector-82, Mohali, through its General
Manager Sh. H.B. Garg S/o Sh. Ram Dayal.
....Opposite party
Consumer Complaint under Section 17 of
the Consumer Protection Act, 1986.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member.
Shri Rajinder Kumar Goyal, Member
Consumer Complaint No. 548 of 2017 2
Present:-
For the complainants : Mrs. A.P. Kaur, Advocate
For the opposite party : Sh. Vinay Pandey, Advocate
GURCHARAN SINGH SARAN, PRESIDING JUDICIAL MEMBER
ORDER
The complainants have filed this complaint against the opposite party (hereinafter referred as Op) under Section 17 of the Consumer Protection Act, 1986 (for short the Act) on the averments that the complainants were interested in purchasing residential apartment in the project of Op i.e. 'Falcon View', a part of Super Mega Mixed project of Ops located in Sector 66-A, Mohali. It is a 3BHK apartment of 2490 sq. ft. for a total price of Rs. 92,13,000/-. The complainants were required to deposit 25% of the price as booking amount, which came to Rs. 23,74,420/- inclusive of Service Tax. The said amount was deposited with the Op and parties entered into an agreement on 21.2.2013. The complainant was allotted apartment No. B-701, facing green of 2490 sq. ft. (approx.) in wing B at 7th Floor in Falcon View vide allotment letter dated 23.2.2013. 10% of the basic sale price i.e. Rs. 9,21,300/- was to be paid by the complainant upto 1.3.2013. Thereafter, 65% of payment i.e. Rs. 59,88,450/- was to be paid as per the schedule given below:-
Sr. No. Linked Stages Tentative Payment Due Amount date i. On completion of 15.3.2013 7.5% of Basic Rs.
basement roof Sale 6,90,975/- +
Rs.
1,38,195/-
Slab of the tower Price + 50% applicable
Consumer Complaint No. 548 of 2017 3
of PLC + service tax on
applicable date
service tax on
date
ii. On completion of 2nd 15.4.2013 7.5% of BasicRs.
floor roof Slab of the Sale price + 6,90,975/- +
tower 50% of PLC Rs.
applicable 1,38,195/-
service tax on
applicable
date service tax on
date
iii. On completion of 5th 15.6.2013 7.5% of Basic Rs.
floor roof slab of the Sale 6,90,975/- +
tower applicable applicable
Service tax Service Tax
on date on date
iv. On completion of 8th 15.8.2013 7.5% of Basic Rs.
floor roof Slab of the Sale 6,90,975/-
tower applicable
Service tax
on date
v. On completion of 15.10.2013 7.5% of Basic Rs.
11th floor roof Slab Sale 6,90,975/- +
of the tower applicable applicable
Service Tax Service Tax
on date on date
vi. On completion of 15.3.2014 7.5% of Basic Rs.
Final roof Slab of Sale 6,90,975/- +
the tower applicable applicable
Service tax Service Tax
on date on date
vii. On completion of 10.3.2014 7.5% of Basic Rs.
Internal Plaster of Sale 6,90,975/- +
the tower price+50% 1,00,000
car parking applicable
Charge + Service Tax
applicable on date
service on
date
viii. On completion of 10.5.2014 7.5% of Basic Rs.
Internal Flooring Sale price + 6,90,975/- +
50% car 1,00,000
parking applicable
Charge + Service Tax
applicable on date
service on
date
ix. On offer of On offer of 05% of Basic Rs.
possession possession Sale Sale 4,60,650/-
price + IFMS [Balance 5%
+ other BSP] + Rs.
Applicable 1,24,500/-
charges + (IFMS_ + Rs.
applicable 1,49,400/-
service Tax [Club
on date charges] +
37,350/-
[Power Back
Up] +
Applicable
Consumer Complaint No. 548 of 2017 4
Service Tax
on date
As per Clause 2.5 of the allotment letter, interest on delayed payment was to be charged @ 10% p.a. for the first month, 12% of the 2nd month and 15% per month for the 3rd month and thereafter, proceedings regarding cancellation of the allotment of the apartment shall be initiated. According to Clause 2.24 of the allotment letter, the construction of the residential apartment was likely to be completed within a period of 30 months from the date of issue of allotment letter, subject to force majeure circumstances and in case of delay, the allottee will be entitled to compensation @ Rs. 10/- per sq. ft. per month of the area of the apartment. The complainant had been paying regular installments towards the sale consideration of the property as per the payment plan and as demanded by the Op alongwith interest. The statement of account dated 30.6.2016 clearly reflect that in addition to the principal amount of Rs. 84,37,765/-, the Op has charged a sum of Rs. 4,33,000/- as interest on account of late payment charges. The Op were required to offer the possession in August, 2015 but Op miserably failed to comply with the terms and conditions of the allotment. It has been further stated that despite lethargic pace of construction, Op insisted on receiving payment as per schedule, which is construction linked, the Op received the payment in advance. The Op received a sum of Rs. 5,40,000/- in September, 2016 for internal flooring but ground reality is that the internal flooring is not even started and in this regard, a letter dated Consumer Complaint No. 548 of 2017 5 25.2.2017 was addressed to the Op. The complainant visited the project site many times and some of mails and letters dated 8.4.2016, 3.6.2016, 22.6.2016, 1.10.2016, 19.10.2016, 16.12.2016, 25.2.2017, 9.4.2017 and 13.4.2017 point out various deficiencies on the part of Op. Alleging deficiency in service on the part of Op, complaint has been filed by the complainant seeking directions against the Op to hand over the possession of the property, complete in all respects, pay compensation on account of delayed possession @ 10% p.a. on a sum of Rs. 84,37,765/- from August, 2015 till the date of possession, refund a sum of Rs. 4,33,000/-
illegally received on account of delayed payments alongwith interest @ 10% p.a. from the date of receipt till the date of refund; compensation of Rs. 5 Lacs on account of harassment and Rs. 50,000/- as litigation expenses.
2. Upon notice, Op appeared and filed its written reply through Sh. H.B. Garg, General Manager of the firm taking preliminary objections that the possession of the flat has been handed over to the complainant No. 1 on 18.8.2017 on the basis of her authorization to deliver the same to her husband Ashok Kumar Katyal; the complainants are not consumers as defined under Section 2(1)(d) of the Act as the flat was purchased by the complainants not for their personal use but for investment purposes; as they are residents of New Delhi and no need to have a flat at Mohali. The Op was granted LOI by the State Government on 10.5.2011 and subsequently, an agreement dated 30.5.2011 was entered with the State Government for development of Super Consumer Complaint No. 548 of 2017 6 Mega Mixed Use Intergrated Industrial Park Project, spreading over in Sector 66-A, 82 & 83, SAS Nagar, Mohali. After getting approval of the layout plan, it was proposed to construct multi storey apartments. The construction of the flat could not be completed within a period of 30 months as Op had invited construction Companies by floating tenders to construct flats on the basis of advertisement dated 26.2.2012 and it was allotted to M/s Supreme Infrastructure India Ltd., Gurgaon on 5.10.2012. When the said Company started the construction work, the problem of excess water in the soil was found and after strenuous process, it was dewatered on 3.12.2013. There was deficiency in supply of basic construction material i.e. sand and gravel in view of the restriction imposed by the State of Punjab. Then there was heavy rain in the year 2013-14 in and around Chandigarh, which attributed to delay the project. The complaint is not maintainable being after thought and that the complainants have not approached the Commission with clean hands and filed this complaint with ill motivated reasons to tarnish the long standing goodwill of the Op. On merits, booking of the flat is a matter of record. It is also a matter of record that the possession was to be delivered within a period of 30 months from the date of allotment but project was delayed on account of reasons as detailed in the preliminary objections. It was further submitted that over and above the principle amount, Ops charged a sum of Rs. 4,33,000/- on account of interest and late payment charges. Since the possession has been delivered to the Consumer Complaint No. 548 of 2017 7 complainants as on 18.8.2017, therefore, there is no merit in the complaint, it be dismissed.
3. Parties were allowed to lead their respective evidence.
4. Complainants in their evidence have tendered affidavit of Meenakshi Nijhawan Ex. CW/1 and documents Exs. C-1 to C- 14A. On the other hand, Op had tendered affidavit of Tilak Raj Vyas, Manager as Ex. Op-A and documents Ex. Op-1 & Ex. Op- 5/15 and Mark A to C.
5. We have heard the counsel for the parties and have carefully gone through the pleadings of the parties, evidence and documents on the record.
Miscellaneous Application No. 1137 & 1138 of 2018
6. When the arguments were heard in this complaint on 24.4.2018, the counsel for the Op moved this application to comply with the order dated 10.4.2018 and then other application to place on record documents in compliance of the order dated 10.4.2018. Once an application has been filed to place on the record the documents in compliance with the order dated 10.4.2018 then application for extension of time to place on record the documents as per the order dated 10.4.2018 has become infructuous. In the application, they have placed on the record the documents of casting of slab, slab casting of 3rd floor, slab casting of 5th floor, road side II flats, G+12 Road Side. These documents will be considered at the time of having discussion with regard to reasons for delay in construction of the flats.
COMPLAINT ON MERITS Consumer Complaint No. 548 of 2017 8
7. It is a matter of record that the complainants booked one apartment of 2490 sq. ft. in the project of the Op i.e. Falcon View in Sector 66-A, Mohali with a basic sale price of Rs. 92,13,000/- and in this regard, agreement was executed between the parties. It has been placed on the record as Ex. C-1 and vide letter dated 23.2.2013 Ex. C-2, apartment No. B-701, Facing Green of 2490 sq. ft. (approximately) in Wing B at 7th Floor was allotted to the complainants. As per the agreement, a sum of Rs. 23,74,420/- was taken at the time of execution of the agreement and after the agreement, the complainant was to deposit Rs. 9,21,300/- i.e. 10% of the basic sale price upto 1.3.2013, which was deposited and the balance 65% i.e. Rs. 59,88,450/- has been made as follows:-
Sr. Linked Stages Tentative Payment Due Amount No. Date 1 On completion of 15.03.2013 7.5% of Basic Rs. 6,90,975/- + Basement Roof Slab of Sale Price + Rs. 1,38,195/- + the Tower 50% of PLC + applicable applicable service tax on service tax on date date 2 On completion of 2nd 15.04.2013 7.5% of Basic Rs. 6,90,975/- + Floor Roof Slab of the Sale Price + RS. 1,38,195/- + Tower 50% of PLC + applicable applicable service tax on service tax on date date 3 On completion of 5th 15.6.2013 7.5% of Basic Rs. 6,90,975/- + Floor Roof Slab of the Sale Price + applicable Tower applicable service tax on service tax on date date 4 On completion of 8th 15.8.2013 7.5% of Basic Rs. 6,90,975/- + Floor Roof Slab of the Sale Price + applicable Tower applicable service tax on service tax on date date 5 On completion of 11th 15.10.2013 7.5% of Basic Rs. 6,90,975/- + Floor Roof Slab of the Sale Price + applicable Tower applicable service tax on service tax on date date 6 On completion of Final 25.1.2014 7.5% of Basic Rs. 6,90,975/- + Roof Slab of the Tower Sale Price + applicable applicable service tax on Consumer Complaint No. 548 of 2017 9 service tax on date date 7 On completion of 10.3.2014 7.5% of Basic Rs. 6,90,975/- + Internal Plaster of the Sale Price Rs. 1,00,000/- + Tower +50% Car applicable Parking service tax on Charges + date applicable service tax on date 8 On completion of 10.5.2014 7.5% of Basic Rs. 6,90,975/- + Internal Flooring Sale Price + Rs. 1,00,000/- + 50% Car applicable Parking service tax on Charges + date applicable service tax on date 9 On offer of possession On offer of 05% of Basic Rs. 4,60,650/-
possession Sale Price + (Balance 5%
IFMS + other BSP) + Rs.
applicable 1,24,500/-
charges + (IFMS) + Rs.
applicable 1,49,400/- (Club
service tax on Charges) +
date 37,350/- (Power
Back Up) +
applicable
service tax on
date
Grand Total Rs. 59,88,450/-
(principle
amount) + Rs.
7,87,640/- (other
charges)
The complainants have paid the entire amount and now the possession has been delivered to the complainants as on 18.8.2017. In case there was any delayed payment, the complainants were charged with penal interest as per the agreement and it has been admitted by the Op in its written reply that a sum of Rs. 4,33,000/- as penal interest on account of delayed payments by the complainants. Now the claim of the complainants with regard to point No. 1 i.e. delivery of the possession stand completed and now the claim of the complainants is only with regard to compensation on account of Consumer Complaint No. 548 of 2017 10 delayed possession, compensation and litigation expenses. As per the Agreement Clause No. 32, the construction was to be completed within a period of 30 months from the date of issue of the allotment letter, failing which it will pay Rs. 10/- per sq. ft. of the super area of the apartment per month. For ready reference, Clause No. 32 of the agreement is reproduced as under:-
"32. That construction of the residential apartment is likely to be completed within a period of 30 months from the date of issue of allotment letter but shall be subject to force majeure and circumstances beyond the control of developers and that period shall not be counted towards the said period of 30 months.
In case possession of the apartment is not offered to the purchaser within a period of 30 months or extended period, the purchaser shall be entitled to receive compensation @ Rs. 10/- per sq. ft. of the super area of the apartment per month and no other compensation of any kind. In case the purchaser fails to clear his account and take possession of the apartment within 30 days of the offer, the purchaser shall be liable to pay holding charges @ Rs. 10/- per sq. ft. of the super area of the Apartment per month in addition to liability to pay to Janta Land Promoters Limited and other consequences of default in payment.
If as a result of any eventuality, the Company is unable to allot the apartment to the purchaser, the Company shall be liable to refund the purchaser, the amount received from the Consumer Complaint No. 548 of 2017 11 purchaser alongwith the interest at the term deposit rate of the Bank, as applicable on the date of refund."
However, in case we go through this Clause, the construction of the apartment was to be completed within a period of 30 months, subject to force majeure circumstances. The force majeure circumstances have been defined as under:-
"Force majeure is an extraordinary event or circumstance beyond the control of the parties, such as, a war, strike, riot, crime, or an event described by the legal term act of God i.e. hurricane, flood, earthquake, volcanic eruption, etc."
The Op has given the reasons for delay in raising the construction in para No. 6 of the written reply. Now we have to see it whether the reasons given in para No. 6 of the written reply falls within the definition of force majeure. In sub-para No. (i) & (ii), they have stated that tenders were floated from various construction Companies for the purpose of construction of the flats and on the basis of tenders, work was allotted to Supreme Infrastructure India Ltd., Gurgaon. It was already within the knowledge of the Op either they are to raise the construction of their own or through any construction company, therefore, it cannot be said to be a force majeure. It has been further stated in sub-para (iii) that when the construction was started on 15.10.2012, problem of excess water in the soil was found in the project site and de-watering started on 15.10.2012 and it completed on 3.12.2013. Here the documents referred by the counsel for the Ops in M.A. No. 1138 of 2018 are Consumer Complaint No. 548 of 2017 12 relevant that basement slab was completed on 24.7.2013 and after that the payment was raised from the Ops in September, 2013 after completion of the basement slab. Here Op was confronted with the plea taken by the Ops in their written reply that in case process of de-watering of the soil was completed on 3.12.2013 then how the basement roof slab can be completed by 24.7.2013. The Chief Engineer of the Construction Company was present at the time of arguments and he also admitted this fact that till the de-watering process is not completed it is not possible to have the basement slab. In rebuttal to that, counsel for the Op stated that there were several Towers 'A to H' and that the de-watering process of Tower No. B in which the flat of the complainant was falling was completed much earlier. But this plea of the counsel for the Op cannot be accepted because the written reply was filed by the Op only with regard to Tower-B in which the flat of the complainant was fallen. In case the documents were with the counsel for the Op, demanding of payment on completion of basement slab on 6.9.2013 and that the basement slab was completed by 24.7.2013 as per the documents then why it was not referred in the written reply as to when the process of de-watering of Tower-B was completed. Any document against the pleadings cannot be accepted. This preposition arose that Op was demanding the payments even before the stage of the construction as per the agreement. Even if for the sake of arguments it is taken that the roof slab was put in place on 24.7.2013 as per the plea taken by the Op and in case the payment of the complainants was late, they Consumer Complaint No. 548 of 2017 13 have already paid the penal interest to the extent of Rs. 4,33,000/- as admitted by the Op, therefore, this plea again does not come to the rescue of the Op that due to de-watering of the soil, there was delay in completion of the project. Even if the basement slab was put on 24.7.2013, the apartment was to be completed by August, 2015. Therefore, the Op had more than 2 years time to complete the apartment. In case de-watering of the soil was done much earlier i.e. 3.12.2013 then again this cannot be a ground for delay of the project because there was sufficient time at the disposal of the Op to complete the project.
8. Another plea has been taken that due to non-availability of the construction material i.e. Sand and Gravel, there was delay in completion of the project. In this regard, the counsel for the Op has placed on the record some newspaper cuttings Mark 'A'. Firstly, it is just a new item, therefore, news item does not prove the fact. It has been stated that ban on mining was imposed in the State of Punjab due to non-issuance of environment clearance by the Central Government then the letter of the Central Government should have been placed on the record or letter of the State of Punjab on the record due to imposition of ban on mining due to non-issuance of environment clearance by the Central Government. Another plea has been taken in this case that it should be imposed on account of an order passed by the Hon'ble Punjab & Haryana High Court but no such order of High Court has been placed on the record. Therefore, merely, on the basis of one Consumer Complaint No. 548 of 2017 14 news item, it cannot be said that there was ban on mining due to non-clearance in Punjab and Haryana.
9. Another plea has been taken that there was heavy rain in Chandigarh, Punjab and Haryana. It can be for a period of at the most one week that due to some heavy rain the work may be stopped temporarily. Similarly a plea has been taken that there was strike by the Transporters. Again it is on the basis of news item, therefore, merely on its basis, there was some difficulty in getting the building material. No affidavit has been filed by the Construction Company that the Construction Company does not have its own transport to fetch the building material. Therefore, the reasons stated by the Op in their written reply for delay in construction are far from imagination and we does not consider them to be force majeure giving some right to the Op to delay the project.
10. On the one side, in case there was some delay on the part of complainant, the Op charged interest to the tune of Rs. 4,33,000/- as admitted by them in their written reply. In case there were some force majeure circumstances then the plea taken by the Op could be considered, in case it would have been genuine and they would not have charged penal interest from the Op. The Op cannot sail in two boats. In case there is slight delay on the part of the complainant to make the payments then they were to charge penal interest as per the terms of the agreement and in case there was delay on their part, they are taking the shelter of the force majeure, which in our above discussion are not the force majeure. Consumer Complaint No. 548 of 2017 15 Now they want to save by their penal clauses in the garb of force majeure. Once agreement in writing is there then both the parties are bound by the terms of the agreement and we as a Consumer Fora cannot go beyond the terms of the agreement. Therefore, as per Clause No. 32 of the agreement as referred above on account of delay in delivering the flat/apartment within the time then they further will pay the penalty. Super area of the flat is 2490 sq. ft. and in case it is taken @ Rs. 10/- per sq. ft. per month, it comes as Rs. 24,900/- per month, therefore, Op will pay the penal charges @ Rs. 24,900/- per month w.e.f. 1.9.2015 to 18.8.2017.
11. An objection has been taken by the Op that the complaint is not maintainable because the possession of the flat has been given. The possession of the flat has been given during the pendency of the complaint, therefore, such a plea cannot be taken by the Op.
12. Another plea is that it was put for investment purposes only as the complainants are residents of Delhi. There is no bar that in case the complainants are residing in Delhi, they cannot purchase the flat in Mohali. They have taken the possession as on 18.8.2017 and there is no argument on behalf of the Op that they have sold this flat. There is no background of the complainants that they are trading in real estate and till such an evidence come on the record the plea of the Op that the flat was booked for investment purposes is not proved. In this regard, we are fortified by the judgment 2017(3) CLT 459 "Pranab Basak versus Suhas Chatterjee". In that case, two flats were booked by the Consumer Complaint No. 548 of 2017 16 complainant and a plea was taken that the complainant had booked these flats for investment purposes. It was observed by the Hon'ble National Commission that unless it is established that the complainant is dealing in sale and purchase or his real intention in booking the flat was to sell the same on profit, on appreciation of the value of the real estate. Further in "Kavita Ahuja versus Shipra Real Estate Ltd." and Jai Krishna Estate Developer Pvt. Ltd.", 2016 (1) CPJ 31 it was held by the Hon'ble National Commission that buyers of the residential unit would be termed as consumer unless it is proved that he/she had booked the same for commercial purposes.
13. No other point was argued.
14. Sequel to the above, we partly accept the complaint and direct the Op as under:-
i) to pay penal charges @ Rs. 24,900/- per month w.e.f. 1.9.2015 to 18.8.2017 to the complainants for delayed delivery;
ii) pay Rs. 50,000/- as compensation on account of mental agony and harassment to the complainant for approaching the Op time and again to get the delivery of the flat.
iii) pay Rs. 21,000/- as litigation expenses.
The above directions be complied by Op 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 Consumer Complaint No. 548 of 2017 17 order by filing application under Sections 25 & 27 of the CP Act against the Ops.
15. The consumer complaint could not be decided within the statutory period due to heavy pendency of Court cases.
16. Order be communicated to the parties as per rules.
(GURCHARAN SINGH SARAN) PRESIDING JUDICIAL MEMBER (RAJINDER KUMAR GOYAL) MEMBER May 03, 2018.
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