State Consumer Disputes Redressal Commission
Rajinder Kaur Bains vs Taneja Developers & Infrastructure ... on 20 September, 2017
Daily Order FIRST ADDITIONAL BENCH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB SECTOR 37-A, DAKSHIN MARG, CHANDIGARH. Consumer Complaint No.158 of 2016 Date of Institution : 24.05.2016 Order Reserved on: 18.09.2017 Date of Decision : 20.09.2017 Mrs. Rajinder Kaur Bains, r/o House No. 3082-B, Sector 39-D, Chandigarh .....Complainant Versus M/s Taneja Developers and Infrastructure Ltd., 9 Kasturba Gandhi Marg, New Delhi, 110001, through it Managing Director. ....Opposite Party Consumer Complaint U/s 17(1)(a) of The Consumer Protection Act, 1986 (as amended up to date). Quorum:- Shri J. S. Klar, Presiding Judicial Member.
Smt. Surinder Pal Kaur, Member.
Present:-
For the complainant : Sh. A.S Salar, Advocate For opposite party : Sh. Puneet Tuli, Advocate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The complainant has filed this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act) against the OPs on the averments that earlier Smt. Maya Sharma and Sh. Surinder Sharma applied for allotment of apartment to OP. Previously, Apartment Buyer's Agreement was executed between Smt. Maya Sharma and Sh. Surinder Sharma and Taneja Developers & Infrastructure Limited on 03.0.05.2012 for Apartment no. J-303 having an area of 1160 sq. ft or 107.76 sq. meters. Thereafter, the aforesaid buyers agreement of the apartment was transferred in the name of present complainant- Mrs. Rajinder Kaur Bains and was duly approved by OP. A construction linked payment plan was agreed upon according to the buyers agreement and possession of the apartment was agreed to be delivered by OP to complainant in three years time from the date of execution of above agreement. The total basic price of the apartment was Rs. 30,74,000/- measured at Rs. 2650 per square feet. The complainant was to incur Rs.9.5 lac more than the sale price agreed in the above the agreement. The complainant has been completely blindsighted by the 30% increase in the sale price of the flat effected by OP. It was agreed upon, vide Clause 6.1 of the above Agreement that OP shall deliver the possession of the flat in three years time from the date of execution of the above agreement. Three years period had already elapsed on 03.05.2015. The OP after a delay of nearly one year offered the possession of flat to complainant, vide letter dated 29.02.2016. According to Clause 6.2 of the agreement, the possession was to be offered by OP only upon obtaining certificate of occupation and use from the competent authority. There was no mention of any occupation certificate, leave alone any specific date of issue of occupation certificate, or of any permission to offer possession by any competent authority in the letter dated 29.02.2016, which is clearly contrary to the buyers agreements. The OP has offered possession just to escape from its liability of paying compensation to her. The apartment at the time of offer of possession was absolutely uninhabitable and incomplete according to specifications, agreed upon in Annexure III of the agreement. From the photographs, it is clear that paint job was remarkably shoddy and incomplete in all rooms and bathrooms. There are patches of cement on every wall of the apartment. There are no switches in any of the rooms or bathrooms. There is much, plaster and cement splattered on the floor. The representative of OP no.1, while showing the sample apartment has vehemently assured the complainant that flats would be having sanitary fittings, but they refused to add them to apartment on the pretext that it was not mentioned in the agreement. It was further averred that this practice of offering possession of incomplete and uninhabitable apartments amount to deficiency in service and unfair trade practice on the part of OP. OP vide letter dated 29.02.2016 informed the complainant that the super area of the apartment has been increased by 102 sq. ft. The complainant has booked the flat having a super area of 1160 sq. ft, but she was surprised, when she received letter of offer of possession with super area of the apartment increased to 1262 sq.ft burdening her with cost of the increased super area, coming to Rs.2,70,000/- a steep 8.79% increase in the super area. This is in clear contravention of Section 11.(1) Punjab Apartment and Property Regulation Act, 1995. The OP illegally charged for stilt and open parking spaces, which is in contravention to Punjab Apartment and Property Regulation Act, 1995. The complainant is entitled to refund of the money deposited by her for stilt and open parking spaces with OP. The complainant has opted for an open parking according to above agreement, but she has been illegally asked by OP to deposit the price of a stilt parking. It was further averred that the she has already paid Rs.24,59,200/- against basic sale price and additionally Rs.5,42,000/- under various other heads. OP illegally charged penal interests @ 21% per annum for a very negligible delay, as is evident from statement of account. The OP has further demanded Rs.99,938/- by charging VAT from the complainant. No calculation has been given to complainant in this regard. The OP has also illegally demanded payment of Rs.30,000/- as maintenance security deposit and Rs.50,000/- as club membership. As per Clause 10.2 of the buyers agreement, maintenance charges shall be levied from the date of issuance of occupation certificate, but it shall be assessed only after the execution of a tripartite maintenance agreement. In this way, OP has arbitrarily charged the excess amount from the complainant. The complainant has been harassed by OP with exorbitant charges over and above the agreed price of the flat. The complainant has, thus, filed the complaint directing OP to deliver the possession of the apartment in habitable conditions, complete in all respects and with necessary certificates from the competent authorities within one month from the date of filing this complaint along with payment of compensation to the tune of Rs.10,00,000/- for delayed delivery of possession, to refund Rs.50,000/- for open parking, cancelling the demand of maintenance charges and club membership or in the alternative directing OP to refund Rs.27,81,669/- (basic price + PLC+EFFC+PBC+Car Parking+ Interest on delayed payment) plus 21% interest calculated on the aforementioned amount from the date of delivery of possession.
2. Upon notice, OP appeared and filed written reply and contested the complaint of the complainant vehemently raising preliminary objections that complaint is based on misrepresentation, as complainant has concealed the material facts from the Commission. It was averred that OP Company was under process of development of the Mega Housing Project consisting of different residential and commercial projects in order to create an integrated township. It was averred that Ms. Maya Sharma and Sh. Surinder Sharma requested for an offer of provisional allotment of a residential flat in the Group Housing Project of OP Company nomenclatured as 'Wellington Heights', as they wanted to make investments in order to earn premium from open market. After satisfying themselves about the forthcoming scheme of OP, they got themselves registered for offer of provisional allotment of a residential flat in the Group Housing Project of OP Company. Along with their application, they made deposit of Rs.6,15,000/- through two cheques dated 24.03.2012 and 31.03.2012. Ms. Maya Sharma and Surinder Kumar Sharma after receiving provisional letter of allotment, they executed an Apartment Buyers Agreement dated 03.05.2012 with OP. The sale price of the said flat should be calculated on the basis of its super area and final super area of the said flat would be confirmed by OP Company only after construction of complete building. In the month of May, 2012, Ms. Maya Sharma and Surinder Kumar Sharma were found to be in arrears of Rs.5,90,009/- and accordingly demand letter dated 25.5.2012 was issued to them demanding the payment of said amount within period of 15 days from the date of said letter. They made payment of Rs.5,50,000/- on 15.6.2012 against valid receipts. In the month of July, 2013 Ms. Maya Sharma and Surinder Kumar Sharma approached the office OP and submitted application for effecting the transfer of their rights in flat no. J-303 to Ms. Rajinder Kaur complainant. At the time of effecting the said transfer, the complainant was also made aware of the terms and conditions of the allotment as well as Apartment Buyer's Agreement dated 03.05.2012. In the month of February, 2016, the construction of the flat was complete and intimation in this regard was given to the complainant through letter dated 29.02.2016. She was also requested to make payment of Rs.11,00,931.99 towards balance sale consideration of the flat. She was also intimated that because of reduction in the rates of External Development Charges by the government, she was given the credit note of Rs.86,196/- . As per final calculation of the super area of the flat in question, it was found that area of the same has been increased by 102 sq. ft and final area of the flat has been found to be of 1262 st.ft. Accordingly, in terms of the agreement dated 03.05.2012, a further demand of Rs.2,70,300/-was also inserted in the final statement of account. As per the detailed statement of account sent to the complainant on 29.02.2016, the complainant was in arrears of a total sum of Rs.11,00,931.99 which include BSP, EFFC, PLC, Car parking, service tax, IFMS, Club membership, VAT and price of increased area. After receipt of aforesaid intimation letter, complainant came forward on 31.05.2016. She visited the site and was fully satisfied with the flat constructed by OP. Thereafter, she made payment of Rs.3,18,543/- against a sum of Rs.11,00,931.99. The OP company has charged the complainant in terms of the buyers agreement only. In the month of February, 2016, the construction of the flat was complete and intimation in this regard was given to the complainant through letter dated 29.02.2016. Rest of the averments have been denied by OP and it prayed for dismissal of the complaint.
3. The complainant tendered in evidence her affidavit Ex.CW-1/A along with copies of documents Ex.C-1 to Ex.C-4. As against it; OP tendered in evidence affidavit of Sh. Jatin Jain Deputy General Manager of OP Ex.OP-1/A along with copies of documents Ex.R-1 to Ex.R-10G and closed the evidence.
4. We have heard learned counsel for the parties and have also referred to evidence on the record.
5. The complainant has filed this complaint against OP for directing it to deliver possession of the apartment in habitable condition, complete in all respects and with necessary certificates issued by competent authorities within one month and further to pay compensation of Rs. 10 lac for delayed delivery of possession and refund of Rs.50,000/- for open parking and to cancel the demand for payment for the increase in super area and to provide the occupation certificate and layout plan to complainant by cancelling the demand of maintenance charges and club membership charges or in the alternative directing OP to refund Rs.27,81,669/- with interest @ 21% p.a till actual payment.
6. The evidence on record has also been examined by us, coupled with pleadings of the parties in this case. Originally, Maya Sharma and Surinder Sharma were allotted apartment no. J-303 with area of 1160 sq. ft or 107.76 sq. meters by OP. Above allotted apartment to Maya Sharma and Surinder Sharma was transferred to complainant and necessary endorsement on the buyer's agreement was made in this regard, which was duly approved by OP. The construction-linked plan was agreed upon according to the buyers agreement between the parties and possession of the apartment was agreed to be delivered by OP to the allottee within three years from the date of execution of buyers agreement on 03.05.2012. The total basic price of the apartment was Rs. 30,74,000/- . OP suddenly increased 30% price in the sale price of the apartment without any intimation to the complainant, which is alleged to be total unfair trade practice, as per case of the complainant. The pleaded case of the complainant is that the apartment is still inhabitable and incomplete. Paint is remarkably shoddy and incomplete in all rooms and bathrooms. There are patches of cement on every wall of the apartment. There are no switches in any of the rooms or bathrooms of the flat. There is so much muck, plaster and cement splattered on the floors of the apartment. The OP increased the super area by 102 sq. ft, vide letter dated 29.02.2016, whereas the complainant merely booked the super area of 1160 sq. ft. only. The super area of the apartment was, thus, increased by OP to 1262 sq. ft imposing extra burdening of extra amount of Rs.2,70,000/- on complainant due to increase in super area without her consent. The OP extracted the price for stilt parking, whereas complainant opted for open parking only in the agreement. The complainant paid Rs. 24,59,200/- against sale price and further Rs.5,42,000/- under various other heads. The complete possession of the apartment has not been delivered to the complainant by OP despite passage of three years period against the terms and conditions of the buyers agreement. Further plea of the complainant is that OP wrongly demanded Rs.30,000/- as maintenance security and Rs.50,000/-as club membership charges against the terms and conditions of the buyers agreement. The maintenance agreement with maintenance agency is yet to be signed by the complainant and how OP can recover it in anticipation. The complainant, thus, alleged above said deficiencies in service and unfair trade practices on the part of OP.
7. The complainant Rajinder Kaur tendered in evidence her affidavit Ex.CW-1/A on the record. She deposed her case on oath in her affidavit, as pleaded in the complaint. She admitted this fact that previous owners Ms. Maya Sharma and Surinder Kumar Sharma transferred the apartment in question to her. The complainant stepped into her shoes and became the allottee of the OP, which was also duly approved by OP in this case. The construction linked plan was agreed upon, as deposed by this witness and possession of the apartment was to be delivered in three years from the date of execution of buyers agreement dated 03.05.2012. She further deposed that OP increased 30% sale price of the flat without any rhyme or reason. She termed the violation of Section 11(1) of Punjab Apartment and Property Regulation Act 1995 by OP by increasing super area without consent of the complainant. Ex.C-1 is Buyers agreement dated 03.05.2012 executed between the parties. Ex.C-2 is letter dated 29.02.2016 sent by OP to complainant to the effect that the possession of the flat shall be handed over to her within 30 days from the clearance of all the dues mentioned in the final statement of accounts. The final statement of accounts showing the balance amount of Rs. 11,00,931,99 as due from complainant to OP. Ex.C-3 to Ex.C-3-D of the apartment (Colly) to the effect that construction thereon is incomplete on 08.03.2016, as the date is depicted in the photographs. Ex.C-4 is letter regarding asking for occupation certificate issued by competent authority of this apartment from TDI Infratech Ltd.
8. The version of OP as unfolded in written reply is that only provisional allotment of residential apartment has been made to the complainant and prior to her, to her predecessor in interest. The layout plan of the area shall be allotted at the time of handing over the possession. The sale price of the said apartment/flat shall be calculated on the basis of its super area and final super area of the said apartment shall be confirmed by OP after construction of the building in complete form thereon. The execution of buyer's agreement was admitted by OP. The fact of transfer of the apartment in favour of the complainant from Maya Sharma is admitted fact by OP. OP averred that there is delay of 257 days in making the payment to it. Vide letter dated 29.02.2016, the complainant was asked to make the balance payment of Rs. 11,00,931,99. She was duly intimated on account of reduction in the rates of External Development Charges by the government, she was given due credit of Rs. 86,196/- in her credit note by OP. She was in arrears of a total sum of Rs.11,00,931.99, which include BSP, EFFC, PLC, Car Parking, Service Tax, IFMS, Club Membership, VAT and the price of increased area. She was fully satisfied with the spot inspection about the construction of the flat raised by OP/Company. She paid Rs.3,18,543/- out of Rs.11,00,931.99 and hence arrears of Rs.9,05,023.52 remained. OP further averred that it was under process of development of the Mega Housing Project, which is a part of duly notified Master Plan of Greater Mohali Area and same is exempted from the provisions of Punjab Apartment and Property Regulation Act. OP denied any deficiency in service on its part in the written version. Ex.R-1 is Registration-cum-Application Form. Ex.R-2 is advertisement of allotment of flat. Ex.R-3 is buyers agreement dated 03.05.2012. Ex.R-4 is receipt dated 15.06.2016 for Rs.4,60,900/-, Ex.R-5 is receipt dated 15.06.2016 for Rs.69600/- and Ex.R-6 is receipt dated 15.06.2012 for Rs. 19,500/-. Ex.R-7 is intimation letter dated 29.02.2016 regarding handing over the possession to complainant within 30 days and she was called upon to clear all her dues mentioned in the final statement, which is part of it. Ex.R-8 is final statement of account. Ex.8-A is receipt dated 31.05.2016 for Rs. 307400/- and Ex.R-9 is receipt dated 31.05.2016 for Rs.11143/-. Ex.R-10, Ex.R-10-A to Ex.R-10-F are photographs placed on the file. We find that it is not clear on which date photographs have been taken by OP. Ex.OP-1/1 is affidavit of Jatin Jain Deputy General Manager of OP on the record.
9. From above referred critical analysis of evidence on the record and hearing respective submissions of counsel for the parties, we find that buyers agreement Ex.C-1 was executed between predecessor in interest of complainant Maya Sharma and OP on 03.05.2012, which recorded the terms and conditions of the allotment of flat. The total price thereof is Rs. 30,74,000/- in buyers agreement and super area is approximately 107.76 sq. meter (1160 sq. ft). Clause 1.2 of buyers agreement deals with variations in the cost of construction, raw material, labour costs, increase in super area, increase in external development charges etc. Clause 6.1 of the buyers agreement Ex.C-1 further lays down that possession would be delivered of complete construction of the said apartment to allottee within three years period from the date of buyers agreement. Possession of the flat was to be delivered to the complainant on 02.05.2015, at the most, within a period of three years. As per Clause 6.2 of the buyer's agreement OP/Company, upon obtaining certificate of occupation and use from the competent authority shall offer in writing to the apartment allottee to take over, occupy and use the said apartment in terms of this agreement within 90 days from the date of issue of such notice. This clause makes it incumbent upon OP to hand over the possession after obtaining certificate for occupation and use from the competent authority only. The forceful submission of counsel for the complainant is that there is no occupation certificate with OP for handing over the legal possession of the apartment to complainant and hence there is violation of Clause 6.2 of the buyer's agreement in this case by OP. During the arguments, counsel for OP placed on record one letter of Greater Mohali Area Development Authority PUDA Bhawan Sector 62 Mohali Memo no. GMADA/STP/2016/4019 dated 26.10.2016 for issuance of partial completion certificate. We find that it is not complete occupation certificate, as amended by Clause 6.1 of the buyer's agreement Ex.C-1 on the record. This is certainly deficiency in service on the part of OP being in breach of Clause 6.1 of the buyers agreement. So far no complete possession of the apartment has been delivered to complainant because without complete occupation certificate, the possession cannot be deemed to be complete and hence OP is not entitled to claim maintenance charges from the complainant. The complainant is liable to pay maintenance charges only when occupancy certificate is obtained by OP and complete possession is delivered to the complainant and not prior thereto. The demand of the OP of maintenance charges of Rs.30,000/- from the complainant is, thus, not legally tenable. Similarly, OP is entitled to raise club membership charges only at the time of delivery of complete possession to complainant and prior thereto, they are not justified to the extent of amount of Rs.50,000/-, as per buyers agreement Ex.C-1. No clause in the buyers agreement Ex.C-1 has been brought to our notice by counsel for OP that it is mandatory for allottee to pay the membership charges. Unless and until there is clause in buyers agreement that it is compulsory and mandatory for the allottee, OP is not entitled to demand Rs.50,000/- as club membership charges from complainant, which seems to be an optional one only.
10. The last count on which counsel for the complainant laid emphasis is that OP increased the super area from 1160 sq. ft to 1262 sq. ft and demanded extra price of Rs.2,70,000/- by increasing super area. Section 11.1 of Punjab Apartment and Property Regulation Rules, 1995 deals with enquiry by competent authority. Section 11.1 of the Act lays down that on receipt of application in prescribed form and complete in all respects under Rule 10 of the competent authority, the competent authority shall enquire into the following matters, as it may consider necessary namely:-
a) the tile of the applicant to the land which is proposed to be converted into a colony;
b) extent and situation of the land; c) financial and managerial capacity of the promoter to develop the colony; d) layout plan of the colony; e) plan regarding the development works to be executed in the colony and f) conformity of development of the colony with neighbouring areas.
The competent authority shall enquire about layout plan of the colony and plan regarding development work to be executed in the colony. We find that there is express clause in buyer's agreement mutually agreed upon between the parties, which is clause 1.4 to the effect that super area is tentative one and is subject to variations till the construction of the said building is complete. The total price shall be re-calculated at the time of final approval. Even pricing factor is not within the domain of the Consumer Forum. We find that there is no violation of Clause 4.1 of buyer's agreement between the parties because the allotment was tentative only to complainant, which was subject to variations. The complainant's emphasis on this point is not within four corners of clause 1.4 of buyer's agreement and it cannot be said to be any deficiency in service on the part of OP.
11. Now, we deal with this point, as to whether complainant is entitled to restrain OP from claiming price of stilt parking instead of open parking, whereas there is no such provision in the buyer's agreement for it. On the other hand, OP justified the demand of it before us during the arguments. We have gone through the buyer's agreement Ex.C-1 on the record. The OP extracted the price for stilt parking, whereas complainant opted for open parking only. For want of any express clause in buyers agreement, OP cannot impose the stilt parking on complainant instead of open parking and cannot demand the money for stilt parking, when complainant has not opted for it.
12. Ultimate count raised before us by the complainant is that total price of the plot is Rs.30,74,000/-. The complainant has paid substantial amounts out of the same to OP. Complete possession has not been delivered to the complainant by OP in this case, which is violation of Clause no. 6.1 of buyers agreement Ex.C-1. Without occupancy certificate, possession cannot be said to be completed. Even complete occupancy certificate has not been shown to us by counsel for OP during the arguments. Only partial completion certificate has been shown to us, which is not complete occupancy certificate. The possession cannot be delivered without completion certificate by builder to the allottee received from competent authority. This is deficiency in service on the part of OP, moreso; when substantial amounts have already been paid by the complainant to OP out of sale price. On this point, reference has been made to law by Hon'ble National Commission in Smt. Suman Nandi and another versus M/s Unitech Limited and another reported in Consumer Case No. 277 of 2013 with IA/2747/2015, IA/4949/2014 decided on 17.12.2015 wherein it has been held that parties are bound by the terms and conditions voluntarily agreed upon by them in buyers agreement. It was held by National Commission that provision for compensation should be awarded in case of minor delay in delivery of possession. If the argument of OP is to be accepted, it would lead to absurd situation and would give an unfair advantage to the unscrupulous builder, who might utilize the consideration amount meant to finance the project by the buyer for his other business ventures at nominal interest of 2-3 per cent as against much higher bank lending rates. This could never be the intention of legislation that if such a proposition is accepted, it would result in defeating the object of Consumer Protection Act. National Commission has held that three years period of delivery of possession is quite reasonable period. The delay after three years was held to be unfair trade practice by builder in the above citation. The National Commission therein directed the builder to pay interest in the shape of compensation @ 12% after expiry of scheduled time of three yeras till actual delivery of the possession to allottee. Consequently, we hold that complainant is entitled to recover interest @ 12% per annum on the deposited amounts after three years period from 03.05.2012, which commenced from 03.05.2015 till actual date of delivery of the complete possession of the apartment to complainant.
13. As a sequence of our discussion, we accept the complaint of the complainant and direct OP to pay interest @ 12% over the entire deposited amounts of the complainant from 03.05.2015 till actual date of delivery of possession for delayed possession from 03.05.2015 till delivery of complete possession with occupancy certificate by competent authority. Demand of maintenance charges and club membership charges as raised by OP are set aside, as there is no provision in the buyer's agreement to this effect. The demand of escalation in price due to increase in super area is not disturbed by us. We direct OP to deliver the possession of apartment to complainant with requisite completion certificate and requisite approvals by the competent authorities within 3 months period from the date of receipt of this order and OP is further directed to deliver the possession of apartment after making complete renovation /repairs therein, because photographs of complainant proved that construction is not habitable, whereas photographs of OP are undated and unable to rebut the facts of the complainant.
14. Arguments in this complaint were heard on 18.09.2017 and the order was reserved. Now the order be communicated to the parties.
15. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (SURINDER PAL KAUR) MEMBER September 20, 2017 (ravi)