State Consumer Disputes Redressal Commission
Rakesh Kumar Gogna & Anr. vs M/S Premium Acres Infratech Pvt. Ltd, on 6 February, 2015
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Consumer Complaint : 157 of 2014 Date of Institution : 17.11.2014 Date of Decision : 06.02.2015 1] Rakesh Kumar Gogna S/o Sh. Ram Kumar Gogna R/o H.No.1607/1, Sector 40-B, Chandigarh. 2] Mrs. Renu W/o Rakesh Kumar Gogna R/o H.No.1607/1, Sector 40-B, Chandigarh. ......Complainants. Versus 1] M/s Premium Acres Infratech Pvt. Ltd., SCO 56-57, 3rd Floor, Sector 17-D, Chandigarh through its Managing Director. 2] M/s Premium Acres Infratech Pvt. Ltd., Villa No.205, TDI City Premium Acre Court Yard, Sector 110-111, SAS Nagar (Mohali). 3] M/s Premium Acres Infratech Private Limited, (Regd. Office) 17/6, Anand Parbat, Industrial Area, Near Gali No.10, New Rohtak Road, New Delhi 110005. 4] M/s Taneja Developers & Infrastructure Ltd., 9 Kasturba Gandhi Marg, New Delhi - 110001. 5] Parminder Singh Sehgal (Director), Premium Acres Infratech Private Limited, R/o H.No.1227, Sector 42B, Chandigarh 160036. Second Address: Parminder Singh Sehgal (Director), Premium Acres Infratech Private Limited, R/o House No.61-62, Sector 70, Mohali. ....Opposite Parties. Complaint under Section 17 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. SH. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER.
Argued by: Mrs. Vertika H. Singh, Advocate for the complainants.
Sh. Varun Katyal and Sh. D. S. Dhiman, Advocates for Opposite Parties No.1 to 3 and 5.
Sh. Manoj Vashisht, Advocate for Opposite Party No.4.
PER DEV RAJ, MEMBER The facts, in brief, are that Opposite Party No.4 was the Master Developer whereas M/s Premium Acres Infratech Pvt. Ltd. had purchased the developed plots from Opposite Party No.4 and was developing the Mega Housing Project under the name and style of 'TDI City'. It was stated that the complainants applied for booking of a flat to Opposite Parties No.1 to 3 & 5 vide application dated 10.07.2010 and they were allotted flat No.16202 measuring 1440 Sq. feet super area as per Buyer Agreement dated 19.2.2011 (Annexure C-1). It was further stated that the complainants opted for the construction linked payment plan. It was further stated that as per Clause 9 of the Buyer Agreement dated 19.2.2011, possession of the flat, in question, was to be handed over within 24 months (18 months + 6 months grace period) from the date of execution of the same. It was further stated that possession of the flat was to be handed over on or before 18.02.2013. It was further stated that the basic sale price of the flat was Rs.23,50,000/- and after giving a discount of Rs.50,000/-, the net basic price was determined as Rs.23,00,000/-. It was further stated that the entire aggregate sale price of the flat as agreed to in the Buyer Agreement was Rs.24,16,800/-, which included external development charges (EDC) of Rs.1,16,800/-.
2. It was further stated that the complainants made payment to the tune of Rs.24,21,709/-, which included the service tax of Rs.1,08,090/-. It was further stated that the entire payment made by the complainants excluding the service tax constituted 95% of the total composite sale price, which was paid as and when demanded. It was further stated that rest 5% of the basic sale price + IFMS charges were to be paid at the time of handing over possession. It was further stated that the last demand of payment raised by Opposite Party No.1 was of Rs.3,70,248.29 vide letter dated 10.10.2013 (Annexure C-2). It was further stated that on enquiring about the possession, the concerned official, namely, Mr. Amit Jain gave false assurance to complainant No.1 that the same (possession) would be handed over at the earliest and asked the complainant to make the payment. It was further stated that delayed interest charges to the tune of Rs.3,779.29 were waived off and the complainants made payment of Rs.3,66,469/- on 23.11.2013 vide cheque No.296554 dated 23.11.2013 (Annexure C-3).
3. It was further stated that even after the lapse of approximately two years from the stipulated date of handing over of possession, the flat was not handed over to the complainants. It was further stated that the complainants visited the site several times, but they found immense delay in construction works. It was further stated that on visiting the site in September, 2013, it was noticed that only 50% of the construction appeared to be done. It was further stated that the complainant wrote letter dated 28.06.2013 (Annexure C-4) followed by another letter dated 20.09.2013 (Annexure C-5) requesting Opposite Party No.1 to complete the construction work, and hand over possession at the earliest. It was further stated that the complainants again sent another letter dated 28.07.2014 (Annexure C-6) but to no avail.
4. It was further stated that only 65% to 70% of the construction of the flat had been completed till date. It was further stated that the electric wiring had not been done and simply the pipes had been fitted. It was further stated that no fixture of plumbing had been made. It was further stated that the quality of construction work was utterly poor. It was further stated that there are no doors or windows fitted. It was further stated that despite payment of 95% amount to the tune of Rs.24,21,709/-, Opposite Party No.1 utterly failed to keep its promise. It was further stated that the actual status of the work was clear from the photographs (Annexure C-7 colly.). It was further stated that after 23.11.2013, no demand, whatsoever, was ever made by the Opposite Parties. It was further stated that the balance amount of payment still pending against the said flat was Rs.5,14,194/- in excess of what had already been paid by the complainants.
5. It was further stated that instead of receiving the possession letter, the complainants were shocked to receive a legal notice dated 16.09.2014 (Annexure C-4) whereby an exorbitant amount of Rs.1,13,092/- was shown to be pending against the basic sale price whereas they (complainants) had already made the entire payment as per demand raised by the Opposite Parties. It was further stated that since there was no delay in making the payment, delayed interest of Rs.21,886/- was arbitrarily charged and adjusted from the due payment made by the complainants. It was further stated that Rs.2,09,596/- as inflation charges and Rs.50,000/- as club charges were illegally levied. It was further stated that even the sewerage, electricity and water charges to the tune of Rs.20,000/-, 30,000/- and Rs.30,000/- respectively were on the higher side and should have been charged as per the charges fixed by the concerned Departments. It was further stated that there was no development in the sector. There was also no proper approach road to the flat. It was further stated that no path had been developed and maintained and most importantly, there were even no street lights. It was further stated that it was the responsibility of Opposite Party No.4 to ensure appropriate development in Sectors 110-111, Mohali and in accordance with the guidelines of GMADA.
6. It was further stated that, as per the calculation made by the Creative Consultants, of the floor plan, the built up area came to be 1093 sq. ft. against 1200 sq. ft and the super area came to be 1217 sq. ft. against 1440 sq. ft. depicted by the Opposite Parties. It was further stated that, thus, the Opposite Parties cheated the complainants and charged them for 1440 sq. ft. of super area (1200 sq. ft. built up area) whereas the super area was only 1217 sq. ft. It was further stated that the Opposite Parties, thus, charged more for an extra 223 sq. ft., which they were liable to refund to the complainants.
7. It was further stated that the complainants replied to the legal notice (Annexure C-8) vide letter dated 30.09.2014 (Annexure C-11) and requested the Opposite Parties to waive off the arbitrary demand of Rs.5,14,194/-. It was further stated that the Opposite Parties vide letter dated 29.10.2014 (Annexure C-14) cancelled the allotment of flat, in question. It was further stated that as the Opposite parties failed to handover possession of the flat and are raising irrational demands of exorbitant amount, the complainants are facing immense mental harassment. It was further stated that Opposite Party No.4 also failed to keep any check on the working of Opposite Parties No.1 to 3 and 5 and were, thus, equally responsible and liable for unfair trade practice and deficiency in service. It was further stated that as per Clause 9 of the Buyer Agreement dated 19.02.2011, the Opposite Parties were bound to pay Rs.7,000/- per month to the complainants being delay charges for the period of delay in handing over possession of the flat, in question, but they did not pay any such compensation towards the period of delay.
8. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service and indulgence into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, for declaring the cancellation letter dated 29.10.2014 (Annexure C-14) & impugned demand letter/legal notice dated 16.09.2014 (Annexure C-8) issued by the Opposite Parties as null and void; directing the (Opposite Parties) to give possession of Flat No.16202, complete in all respects; to pay Rs.7,000/- per month as delay charges for the period of delay in handing over possession since 19.02.2013 till the actual date of handing over of possession; interest @18% P.A. on the amount deposited by the complainants from the date of respective deposits till the date of actual physical possession; to refund the amount charged for the extra area of 223 sq. ft. (built up area 107 sq. ft.); pay Rs.5 Lacs, as compensation, for mental agony and physical harassment; and cost of litigation, to the tune of Rs.50,000/-.
9. Opposite Parties No.1 to 3 & 5, put in appearance on 22.12.2014. In their joint written version, Opposite Parties No.1 to 3 & 5, took up certain preliminary objections to the effect that this Commission had no pecuniary jurisdiction to entertain and try the complaint as the amount involved in the present case is Rs.5,14,194/- only; that this Commission also lacks the territorial jurisdiction on the ground that as per Clause 36 of the Agreement, the Courts situated at Delhi shall have exclusive jurisdiction to adjudicate any dispute arising out of the Agreement and that the present complaint involved forgery of documents, suspected role in embezzlement, pricing and the dispute of area, which cannot be decided summarily and can only be dealt with by the Civil Court.
10. On merits, it was stated that the complainants agreed to purchase unit/flat No.16202 in the project of the Opposite Parties, which was allotted to them. It was further stated that copy of the Buyer Agreement (Annexure C-1) is not a genuine document as the same was signed by one Amit Jain on behalf of the Company, whereas he was never authorized to sign any Buyer Agreement on behalf of the Opposite Parties. It was further stated that the said Amit Jain is the relative of Mr. Sanjay Jain former Director of the Opposite Party Company. It was further stated that the complainants alongwith Sanjay Jain and Amit Jain forged and fabricated the documents including letter head/pads, seal and stamp of the OP Company. It was admitted that Buyer Agreement dated 19.02.2011 was issued by the Opposite Parties but it was denied that the same was ever executed between the parties.
11. It was admitted that the basic sale price of the flat was Rs.23,50,000/- and the complainants were given discount of Rs.50,000/-. It was further stated that besides payment of Rs.24,16,800/-, the complainants were also liable to pay service tax, building cess, electricity charges, sewerage charges, water charges, IFMS charges, club charges, service tax etc. It was further stated that the complainants opted for the construction link payment plan as per schedule. It was admitted that till date, the complainants paid a sum of Rs.24,21,709/- including service tax of Rs.1,08,090/-. It was further stated that as per Clause 7 of the application, timely and due payment was the essence of allotment and if there was a delay of more than 3 months from the due date in making the payments, then in that case, the Opposite Parties could cancel the allotment. It was admitted that the possession was to be handed over within a period of 24 months from the date of Buyer Agreement. It was further stated that since the complainants substantially defaulted in making payment, therefore, by no stretch of imagination, it could be said that the flat was to be handed over on or before 18.02.2013, as alleged. It was further stated that the Opposite Parties were always ready and willing to handover the possession and the complainants were also duty bound to make the payments on time. It was further stated that the complainants could not take advantage of their own wrongs. It was denied that the complainants visited the site several times and rather, they were not interested in having possession of the flat. It was further stated that since the plan opted by the complainants was a construction linked plan, which in essence was a self finance plan, so the progress in the development/ construction of flat, could not have been started.
12. It was denied that the Opposite Parties received letters dated 28.06.2013, 20.09.2013 and 28.07.2014, as alleged by the complainants. It was further stated that the complainants applied for the flat for the purpose of further selling. It was further stated that legal notice was rightly served upon the complainants. It was further stated that since the complainants made delay in making due payments, interest @18% per annum was levied on the delayed payments and thereafter the amounts which were paid by the complainants were firstly adjusted towards interest and service charges and the remaining amount was adjusted towards the balance amount, which justified the amount of Rs.1,13,092/-. It was further stated that Clause 11 of Annexure C-1 itself provided that there was an escalation clause in the Agreement. It was further stated that there was exorbitant increase in the prices in the last 4 years and, therefore, the Opposite Parties were legally as well as morally justified in charging Rs.2,09,596/- on account of inflation, based on whole sale price index. It was further stated that while getting the measurement of the flat from Creative Consultants, the complainants did not associate the Opposite Parties. It was further stated that the Opposite Parties got the measurement of the flat/unit in question from GMADA approved Architech i.e. Maloya and Associates, which submitted its report, according to which, the total built up area of the flat was 1396 sq. ft. and the total super area was 1539 sq. ft, which meant that the complainants have already been given 99 sq. ft. extra super area and 196 sq. ft. extra built up area. It was further stated that the complainants were also liable to compensate the Opposite Parties for the extra area. It was further stated that the Society, in which the flat/unit, in question, is situated, is fully developed and has also got good approach roads. It was further stated that the other buyers have already taken possession in the Society. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Parties No.1 to 3 & 5, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
13. Opposite Party No.4, put in appearance, on 22.12.2014. In its reply by way of affidavit of Sh. Rohit Gogia, its authorized signatory, Opposite Party No.4 stated that the complaint was not maintainable against it, as there was no relationship of consumer and service provider, between it, and the complainant. It was further stated that Opposite Party No.4, is in the business of development of various residential and commercial complexes in various cities of India like Gurgaon, New Delhi, Agra, Moradabad, Sonepat, Kundli, Panipat, Karnal, Mohali and Chandigarh. It was further stated that apart from potential users, who seek allotments of individual plots, various investors also make their investments by making bulk purchases of plots in various townships developed/being developed by Opposite Party No.4. It was further stated that in the present case, Opposite Parties No.1 to 3, approached Opposite Party No.4 for the purchase of 150 fully developed residential plots measuring 192 sq. yards each in order to develop the same and to further sell off to prospective buyers. It was further stated that Opposite Party No.4 was not having any interference with the development, and construction activity by Opposite Parties No.1 to 3 over the aforesaid 150 plots. It was further stated that Opposite Party No.4 is not even party to the Agreement dated 19.02.2011 executed between Opposite Parties No.1 to 3 and the complainants. It was further stated that the complaint was wholly misconceived against Opposite Party No.4. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.4, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
14. The complainants, in support of their case, submitted their separate affidavits, by way of evidence, alongwith which, a number of documents were attached.
15. Opposite Parties No.1 to 3 & 5, in support of their case, submitted the affidavit of Sh. Ranjit Singh, General Manager, by way of evidence, alongwith which, a number of documents were attached.
16. Opposite Party No.4, in support of its case, submitted the affidavit of Sh. Rohit Gogia, its authorized signatory, by way of evidence.
17. The complainants filed replication wherein, they reiterated all the averments, contained in the complaint and repudiated the same, contained in the written version of Opposite Parties No.1 to 3 & 5..
18. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
19. The Counsel for the complainants, submitted that the flat, in question, was allotted to the complainants on 10.07.2010 and Buyer Agreement (Annexure C-1) was executed at Chandigarh on 19.02.2011. She further submitted that the allotment letter was not issued. She further submitted that the possession was to be delivered on or before 18.02.2013 but the same was not offered till date. She further submitted that the aggregate price was Rs.24,16,800/-, against which, the complainants paid 95% of the amount i.e. Rs.24,21,709/- inclusive of taxes. She further submitted that the basic sale price of Rs.1,13,092/- was due and payable by the complainants. She also admitted that a sum of Rs.50,000/- on account of IFMS charges was payable. She further submitted that club charges were not mentioned in the Buyer Agreement and, therefore, the same were not payable. She admitted that sewerage charges were payable but the demand of the Opposite Parties was exorbitant as the amount of road cut, which was being claimed from the complainants, was in fact for a number of flats. She disputed the inflation charges in the sum of Rs.2,09,596/-. Regarding electricity charges, she submitted that the demand was exorbitant and at the best, a sum of Rs.13,840/- (as per Annexure C-17) was payable. She further submitted that as per the layout (Annexure C-9), the total super area came to be 1200 Sq. feet as against 1440 Sq. feet. She further submitted that as per the National Building Corporation norms and the Notification of GMADA (Annexure C-15), the permitted cantilevered projections etc, and projections did not form part of the covered area. The Counsel placed reliance on cases titled Smt. Shanti Vs. M/s. Ansal Housing & Construction Ltd., Revision Petition No.142 of 2011 decided by the National Commission on 11.04.2002 and Kamal Sood Vs. DLF Universal Ltd., 2007 (2) CLT 440 (NC).
20. The Counsel for Opposite Parties No.1 to 3 & 5, submitted that, no doubt, the Buyer Agreement (Annexure C-1), was executed at Chandigarh. Clause 36 of the Buyers' Agreement stipulated that "It is agreed that Courts at Delhi alone shall have jurisdiction for adjudication of all matters arising out or in connection with this agreement." He further submitted that the dispute was only in the sum of Rs.5,14,194/- and, therefore, the complaint fell within the pecuniary jurisdiction of the District Forum. He further submitted that in the instant case, the Buyer's Agreement was signed by one Sh. Amit Jain against whom Opposite Parties No.1 to 3 & 5 had filed complaint as he had committed forgery in connivance with the complainants and that being the case, the matter could only be adjudicated upon by the Civil Court. He further submitted that it is well settled principle of law that when there are allegations of forgery, the Consumer Fora shall have no jurisdiction. He further submitted that Sh. Amit Jain, who had signed the Agreement, was a broker and he was not authorized person to sign the same. He further submitted that the super area came to be Rs.1539 Sq. feet, which is more than the area promised in Buyer Agreement. He further submitted that payment was to be made in accordance with the schedule/construction linked payment plan and since the complainants delayed the payments, the money to complete the construction was invested by Opposite Parties No.1 to 3 & 5 and, therefore, they were entitled to inflation charges. He further submitted that a complaint against Sh. Amit Jain stood lodged with the Chandigarh Police vide Annexure C-16. He relied upon Oriental Bank of Commerce Vs. M/s Shankar Chawal Udoyog, Revision Petition No.4315 of 2012 decided by National Commission on 20.05.2014.
21. The Counsel for Opposite Party No.4, submitted that the complaint was not maintainable against it, as there was no relationship of consumer and service provider between the complainants and Opposite Party No.4. He further submitted that Opposite Party No.4 was not even a party to the Buyer's Agreement dated 19.02.2011 executed between Opposite Parties No.1 to 3 and the complainants. He further submitted that the complaint was wholly misconceived against Opposite Party No.4.
22. It is evident from the terms of the Buyer's Agreement that the complainants opted for construction linked installment payment plan ( page 45). The total basic sale price of the flat, in question, was Rs.23,50,000/- plus Rs.1,16,800/- on account of external development charges and preferential location charges were Nil. By allowing discount of Rs.50,000/-, the total price of the flat, in question, came to be Rs.24,16,800/-. The construction linked installment payment plan, opted by the complainants, is extracted hereunder:-
Payment Milestones Basis of Calculation Amount in INR BSP (Basic Sales Price) 2350000.00 EDC 116800.00 PLC 0.00 Discount 50000.00 At the time of registration 20% of BSP 470000.00 Within three months of allotment 10% of BSP 235000.00 Within three months of first installment 10% of BSP 235000.00 On commencement of demarcation of plot 10% of BSP 235000.00 On casting of ground floor roof 7.5% of BSP 176250.00 On casting of first floor roof 7.5% of BSP 176250.00 On start of brick work 7.5% of BSP + 25% of EDC 205450.00 On start of internal plastering 7.5% of BSP + 25% of EDC + 50% of PLC 205450.00 On start of flooring 5% of BSP + 25% of EDC + 50% of PLC 146700.00 On start of internal electrification 5% of BSP + 25% of EDC - 50% of Discount 121700.00 On start of internal plumbing 5% of BSP - 50% of Discount 92500.00 On final notice of possession 5% of BSP 117500 Total 2416800.00
23. It is also evident that the complainants, in fact, made payment in the total sum of Rs.24,21,709/- as admitted by Opposite Parties No.1 to 3 & 5, in Para 4 of their written statement, on merits. In the calculation sheet Annexure -A at Page 89-90 also, the Opposite Parties admitted receipt of Rs.24,21,709/-.
24. The first question, which falls for consideration, is, as to whether existence of Clause 36 in the Buyers Agreement, bars the territorial jurisdiction of this Commission, to entertain and try the complaint. In this regard, a specific application Under Order 7 Rule 11 C.P.C. was moved by Opposite parties No.1 to 3 & 5 before this Commission on 9.1.2015 for dismissing the complaint on the ground of lack of territorial jurisdiction. Reply to this application was filed by the complainants on 14.1.2015 contending therein that since a part of cause of action accrued to the complainants at Chandigarh and, as such, this Commission has the territorial jurisdiction to entertain and decide the complaint. Section 17(2) of the Act, being relevant, is extracted hereunder:-
(2) A complaint shall be instituted in a State Commission within the limits of whose jurisdiction,--
(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain; or
(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided that in such case either the permission of the State Commission is given or the opposite parties who do not reside or carry on business or have a branch office or personally work for gain, as the case may be, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.
Clearly the Buyer Agreement (Annexure C-1) was executed between the complainants and Opposite Parties No.1 to 3 & 5 on 19.02.2011 at Chandigarh. Further it (Agreement) bears the signatures of one Amit Jain resident of Chandigarh as authorized signatory of Opposite Parties No.1 to 3 & 5. Annexure C-2, which is Letter dated 10.10.2013 written to the complainants by Opposite Parties No.1 to 3 & 5 was also on the Letter Head of their Chandigarh Office viz. SCO 56-57, 3rd Floor, Sector 17-D, Chandigarh. The payment of Rs.3,66,469/- made by the complainants favoring Premium Acres Infratech Private Limited Account Payee Cheque (Annexure C-3) was received at Chandigarh. Even the correspondence (Annexures C-4, C-5, C-8, C-11, C-13 and C-14, which are copies of letters/notices exchanged between the parties viz. the complainants and Opposite Parties No.1 to 3 & 5 at their respective Chandigarh addresses. As such, a part of cause of action definitely accrued to the complainants for filing the instant complaint, against the Opposite Parties, at Chandigarh. In this view of the matter, this objection of Opposite Parties No.1 to 3 & 5, being devoid of any substance, stands rejected. Accordingly, the application dated 9.1.2015 moved by Opposite Parties No.1 to 3 & 5 under Order 7 Rule 11 C.P.C. for rejection of the complaint on the ground of jurisdiction stands dismissed. A similar question arose, before the National Commission, in Smt. Shanti Vs. M/s. Ansal Housing & Construction Ltd. (supra), wherein the National Commission held as under:-
"This appeal is directed against the order dated 9.4.2001 of the Delhi Consumer Disputes Redressal Commission non suiting the appellant on a preliminary issue holding that Delhi State Consumer Dispute Redressal Commission will have no jurisdiction to entertain the complaint.
What led the State Commission to pass this order was clause 24 of the agreement for allotment of residential flat to the appellant. It is stated that 'any dispute arising out of this agreement shall be subject to jurisdiction of Lucknow Courts only". State Commission also relied on the decision of the Supreme Court in the case of A.B.C. Laminart Pvt. Ltd. & Anr. Vs. A.P. Agencies, Salem - AIR 1989 SC 1239 to hold that only the courts in Lucknow would have jurisdiction.
We do not think State Commission examined the whole issue in a pragmatic manner. Complainant is a consumer and raised a consumer dispute under the Consumer protection Act, 1986. To help and assist a consumer and to achieve the objects of the Act, Section 11 of the Act was amended. This Section relates to the jurisdiction of the District Forum. Now a complaint could be filed against the opposite party not only at the place where he actually or voluntarily reside or personally works for gain but also where he carries on business or has branch office. The words "carries on business or has a branch office" were added by the amending Act of 1993. Jurisdiction of a District Forum is exclusively covered by Section 11 of the Act. For this we do not have to refer any provisions of the Code of Civil Procedure. Any provision of the agreement which oust the jurisdiction of a District Forum even from a place where the opposite party has a branch office cannot be held to be valid or binding. Moreover, the clause on which the complainant was non-suited refers to the jurisdiction of Lucknow Courts. District Forum is not a court as understood in the Code of Civil Procedure. That clause in the agreement will have no meaning as far as jurisdiction of the District Forum where the opposite party has even branch office is concerned.
National Commission has already taken a view on this aspect of the matter. Accordingly the impugned order of the State Commission is set aside and the matter is remanded to the State Commission to decide the complaint in accordance with law. Party shall appear before the State Commission on 8.7.2002 for further directions. This appeal is disposed of as above."
25. The next question, which falls for consideration, is, as to whether this Commission has got the pecuniary jurisdiction to entertain and try the complaint. Section 17(1)(a)(i) of the Act is extracted hereunder:-
"17. Jurisdiction of the State Commission. -- (1) Subject to the other provisions of this Act, the State Commission shall have jurisdiction--
(a) to entertain--
(i) complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees twenty lakhs but does not exceed rupees one crore; and"
Perusal of the reliefs claimed by the complainants in their complaint reveals that the complainants have sought possession of the plot, in question, the total sale price where of is Rs.24,16,800/- including EDC of Rs.1,16,800/-. Apart from the possession, the complainants have also claimed Rs.7,000/- per month as delay charges for the period of delay in handing over the possession since 19.02.2013 till the actual date of handing over the possession; compensation to the tune of Rs.5,00,000/- for mental agony and physical harassment besides costs of litigation of Rs.50,000/-. Thus, the value of the plot, possession whereof has been sought by the complainants plus the compensation and cost of litigation, exceeds the pecuniary jurisdiction of the District Forum. As such, this Commission has pecuniary jurisdiction to entertain and decide the complaint. The objection of the Opposite Parties, to this extent, being devoid of merit, stands rejected.
26. The next question, which falls for consideration, is, as to whether this Commission can adjudicate upon the present complaint, when there are allegations of fraud and forgery leveled by the Opposite Parties, against its Director and the complainants. Bare perusal of the Buyer Agreement reveals that the Buyers Agreement on each page bears the stamp and signatures of authorized signatory of Opposite Parties No.1 to 3 & 5. When the Agreement is duly signed by an authorized signatory of Opposite Parties No.1 to 3 & 5, they (Opposite Parties) cannot resile from the contents of the same. It is not the case of Opposite Parties No.1 to 3 & 5 that they did not receive the amount deposited by the complainants. If the person who was authorized to sign the Agreement committed some fraud with Opposite Parties No.1 to 3 & 5, the liability for the same cannot be fastened upon the complainants. The Opposite Parties can proceed against him, as per the provisions of law but the rights of the complainants, being third parties, due to the acts of the Director of the Company, could not be affected. This was an internal affair of the Company vis-à-vis its Director who allegedly committed fraud with it (Company). Thus, this objection of Opposite Parties No.1 to 3 & 5, being devoid of merit also stands rejected. Oriental Bank of Commerce Vs. M/s Shankar Chawal Udoyog's case (supra) is distinguishable on facts as in that case, the complainant had alleged allegation of forgery in the complaint whereas in the instant case, there is no such allegation and rather, this objection was raised by Opposite Parties No.1 to 3 & 5 in their written statement. As such, this judgment is of no help to Opposite Parties No.1 to 3 and 5.
27. The next question, which falls for consideration, is, as to whether there was any deficiency attributable to Opposite Parties No.1 to 3 and 5 in handing over possession of the flat, in question, to the complainants. Clause 9 of the Buyer Agreement executed on 19.02.2011 (Annexure C-1), being relevant is extracted hereunder:-
"9. That the possession of the said premises is likely to be delivered by the company to the Floor allottee within a period of 24 months (18 months plus 6 months grace) from the date of this agreement subject to force majeure circumstances, & on receipt of all payments punctually as per agreed terms 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. The Company on completion of the construction shall issue final call notice to the Floor Allottee who shall within 30 days thereof, remit all dues and take possession of the Floor. In the event of his failure to take possession for any reason whatsoever, he shall be deemed to have taken possession of the allotted unit for purposes of payment of maintenance charges or any other levies on account of the allotted unit, but the actual physical possession shall be given on payment of all outstanding payments as demanded by the Company. The Allottee would be liable to pay holding charges @5/- per sq. ft. per month if he fails to take possession within 30 days from the date of offer of possession. That if the construction is delayed due to normal course, other than conditions set out in point 10, then the company shall pay Rs.7,000/- per month as delay charges for the period of delay."
28. The Buyer Agreement was executed on 19.02.2011 and computing 24 months period therefrom, Opposite Parties No.1 to 3 and 5 were required to hand over possession by 18.02.2013. The complainants vide their letters dated 28.06.2013, 20.09.2013 and 28.08.2014 sent to Opposite Parties No.1 to 3 and 5 through registered post wrote to them pointing out non-receipt of reply to his communications and non-delivery of possession despite his making 95% of the price. Thus, while Opposite Parties No.1 to 3 & 5 on account of their failure to adhere to the time schedule for delivering possession by 18.02.2013 were not only deficient in rendering service, but also indulged into unfair trade practice. The complainants are, therefore, entitled to a sum of Rs.7,000/- per month w.e.f. 19.02.2013 till handing over of possession, in terms of Clause 9 of the Buyer Agreement.
29. The next question, which falls for consideration, is, as to whether there was change in the area of the flat, in question, on the lower side. As per Buyer's Agreement, super area of the flat was 1440 Sq. feet, relating to one floor on one plot admeasuring 192 Sq. Yard (1200 Sq. feet built up area). The definition of 'Super Area', as stipulated in Annexure I of Buyer Agreement is extracted hereunder:-
"The Villa area of the said Villa shall mean the entire area enclosed by its periphery walls including area under walls, columns, balconies and lofts etc. and half the area of common walls with other premises/Villa, which form integral part of Said Villa.
The Common areas shall mean all such parts/areas in the entire said building which the allottee shall use by sharing with other occupants of the said building including entrance lobby at ground Villa, electrical shafts and walls of plumbing shafts on all Villas, common corridors and passages, staircase, mumties, services areas including but not limited to, Overhead water tank, maintenance office/stores etc., architectural features, if provided and the area of the open terrace allowed to be used.
Super Area for the purpose of calculating the sale price in respect of the said Villa shall be the sum of Villa area of the said Villa and it's pro rata share of Common areas in the entire said building."
No doubt the complainants have brought in evidence calculations for the built up and super area of the flat, which according to them, is 1128 and 1215 Sq. feet as against 1200 and 1440 Sq. feet respectively from Creative Consultants, Architects, Valuers and Structural Consultants (Annexure C-10). The document (Annexure C-10) does not give complete details of the entire dimensions and this is also silent as to whether the calculation is in accordance with the definition given in Annexure-I to the Buyer's Agreement. The argument of the Counsel for the complainants that cantilevered projections are not included in the covered area, is of no help to the complainants when definition of super area as given in Annexure-I of the Buyer Agreement is considered. On the other hand, Opposite Parties No.1 to 3 & 5 through Annexure R-5 claimed that the super area is in fact 1539 Sq. feet. In the absence of any convincing explanation by either party regarding decrease/increase in the area, the super area as in the Agreement, is accepted to be correct.
30. The next question, which falls for consideration, is, as to whether the Opposite Parties could increase the price of the flat on account of inflation. There is a specific clause relating to this aspect in the Buyer Agreement. Clause 11 of the Buyer Agreement dated 19.02.2011 (Annexure C-1), being relevant is extracted hereunder:-
"11. The price for the unit stipulated herein is based on wholesale Index for all commodities as ruling in. However, during the progress of the work, escalation in cost takes place which will be based on all India wholesale index for all commodities the effect of such increase as assessed by the Company and intimated to the intending (allottees) shall be payable by him/her over and above the price. The decision of the Company in this respect shall be final and binding on the intending Allottee(s). The increased incidence may be charged and recovered by the Company from the intending allottee(s) with anyone or more of the installments or separately."
Though in the afore-extracted clause, it is stipulated that during the progress of the work, if any escalation in the cost took place, the same was payable by the complainants over and above the price, yet the fact is that the actual physical possession of the unit, in question, has not been delivered by Opposite Parties No.1 to 3 and 5 to the complainants. When Opposite Parties No.1 to 3 and 5, themselves failed to adhere to Clause 9 of the Buyer Agreement and did not offer or handover the actual physical possession of the unit to the complainants till date despite deposit of 95% sale consideration regarding which, Opposite Parties No.1 to 3 and 5 vide Annexure-I (Page 89-90), (statement of account) acknowledged receipt of Rs.24,21,709/-, they could not demand inflation charges from him on account of enhancement in the cost of construction. Not only this, the complainants made payment of around 95% of price during 2011-2013 and whenever there was some delay, they even paid interest in the sum of Rs.21,886/-, the liability for alleged inflation could not be fastened upon the complainants. Not only this, no evidence/basis for payment of inflation charges was led by Opposite Parties No.1 to 3 & 5. In these circumstances, the provisions of Clause 11 of the Buyer Agreement cannot be enforced. Thus, the demand of Opposite Parties No.1 to 3 and 5 on account of inflation charges to the tune of Rs.2,09,596/- is totally illegal.
31. In so far as payment of club membership charges is concerned, the Counsel for the complainants has submitted that the complainants never opted for availing of the facility of club, which the Counsel for Opposite Parties No.1 to 3 & 5 also admitted, during arguments and, therefore, the question of paying the club charges, in the sum of Rs.50,000/- did not arise.
32. The next question, which falls for consideration, is, as to whether the demand of Rs.5,14,194/- raised by the Opposite Parties through legal notice dated 16.09.2014 is justified or not. Before raising the aforesaid demand through legal notice, no formal demand was raised by Opposite Parties No.1 to 3 & 5. Out of the aforesaid demand, as discussed in the forgoing paras, a sum of Rs.2,09,596/- and Rs.50,000/- on account of club charges, is not payable by the complainants. Even a sum of Rs.1,618/- on account of maintenance charges for the period from November 2014 to March 2015 is not payable as the maintenance charges shall be leviable only when the possession is handed over. The following charges are, however, payable by the complainants:-
Balance sale price Rs.1,13,092.00 IFMS Rs. 50,000.00 Sewerage charges Rs. 20,000.00 Electricity charges Rs. 30,000.00 Water charges Rs. 30,00.000 Total: Rs.2,43,092.00
Thus, only a sum of Rs.2,43,092/- plus service tax is payable by the complainants. The contention of the complainants that the charges on account of electricity, sewerage, water etc. are on the higher side, is not on sound footing. The contention of the complainants that at best Rs.13,840/- could be charged on account of electricity is misconceived. A perusal of Annexure C-17 reveals that Rs.13,840/- is the amount of security for 8 KW.
33. Since, the complainants, have suffered immense physical harassment and mental agony, at the hands of Opposite Parties No.1 to 3 & 5, they are also entitled to compensation in the sum of Rs.70,000/-.
34. There was no privity of contract between the complainants and Opposite Party No.4 nor its services were availed of by them (complainants). Thus, no liability can be fastened upon Opposite Parties No.4 by the complainants. The complaint against Opposite Party No.4 deserves to be dismissed.
35. No other point, was urged by the Counsel for the Parties.
36. For the reasons recorded above, the complaint is partly accepted, against Opposite Parties No.1 to 3 and 5, with costs, who are jointly and severally held liable and directed, as under:-
(i) To hand over the legal physical possession of flat No.16202 measuring 1440 Square feet in Premium Acres, Sector 110, Mohali, Punjab, complete in all respects, as per the terms and conditions of the Agreement, within a period of two months, to the complainants, from the date of receipt of a certified copy of this order, on payment of the legally due amount, by the complainants.
(ii)To execute the sale deed/conveyance and get it registered in the name of the complainants after handing over the actual physical possession of unit, in question, as per direction in Clause (i), above, within a period of one month thereafter. The stamp duty, registration charges and all other incidental and legal expenses for execution and registration of sale deed shall be borne by the complainants.
(iii)To pay compensation @Rs.7,000/- per month for delay in delivering possession from 19.02.2013 up-till 28.02.2015 within two months from the date of receipt of a certified copy of the order.
(iv)To pay compensation @Rs.7,000/- per month for delay in delivering possession beyond 28.02.2015 by the 10th of following month till actual handing over of physical possession, as directed in Clause (iii), above.
(v)To pay compensation, in the sum of Rs.70,000/- for causing mental agony and physical harassment, to the complainants, within two months from the date of receipt of a certified copy of this order.
(vi)To pay cost of litigation, to the tune of Rs.15,000/-, to the complainants.
(vii)The complainants shall make the payment of Rs.2,43,092/- plus service tax, as against demand of Rs.5,14,194/-, to Opposite Parties No.1 to 3 & 5, within a period of one month from the date of receipt of a certified copy of the order.
(viii)In case the order is not complied within the stipulated period, as indicated above, then Opposite Parties No.1 to 3 & 5 shall be jointly and severally liable to pay amount mentioned in Clause (iii) alongwith interest @9% per annum from the date of default, till payment and the amount mentioned in Clause (iv) from the date of default till the delivery of possession and the amount mentioned in Clause (v) with interest @9% per annum from the date of default till realization, besides payment of costs, to the tune of Rs.15,000/-.
37. However, the complaint against Opposite Party No.4 is dismissed with no order as to costs.
38. Certified Copies of this order be sent to the parties, free of charge.
39. The file be consigned to Record Room, after completion Pronounced.
February 06, 2015.
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[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[DEV RAJ] MEMBER Sd/-
[PADMA PANDEY] MEMBER Ad