State Consumer Disputes Redressal Commission
Mrs. Paramjit Kaur vs M/S Premium Acre Infratech Pvt.Ltd. on 24 May, 2017
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH Consumer Complaint No. 723 of 2016 Date of Institution 21.10.2016 Date of Decision 24.05.2017 Mrs. Paramjit Kaur W/o Sh. Mastan Singh r/o H.No. 3188, Industrial Co-operative House Building Society, Sector 51-D, Chandigarh. .......Complainant V E R S U S 1] M/s Premium Acre Infratech Pvt. Ltd., Correspondence Office : SCO No.139-141, Sector 17-C, First Floor, Opposite Mehfil Restaurant, Chandigarh through its Director/Authorized Representative. 2] M/s Premium Acre Infratech Pvt. Ltd., Villa No.205, TDI City, Premium Acre Court Yard, Sector 110-111, SAS Nagar (Mohali), through its Director. 3] M/s Premium Acre Infratech Pvt. Ltd., through its Director Sh.Sanjay Jain S/o Sh. M.R.Jain, R/o H.No.2235, Sector 21-C, Chandigarh. 4] Taneja Developers & Infrastructures Ltd., Regd. Office : 9, Kasturba Gandhi Marg, New Delhi 110001, through its Manager. ...... Opposite Parties BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT SH.DEV RAJ, MEMBER
SMT.PADMA PANDEY, MEMBER Argued by:
Sh.Ravinder Rana, Advocate for the complainant.
Sh.Parminder Singh, Advocate for Opposite Parties No.1 & 2.
Opposite Party No.3 exparte vide order dated 06.04.2017.
Sh.S.K.Monga, Advocate and Sh. Manoj Vashishta, Advocate for Opposite Party No.4.
PER PADMA PANDEY, MEMBER In brief, the facts of the case are that the complainant had a dream of having her own house and she wanted to setup her home in a locality, hence was waiting for some extremely well done housing project to come up near/in the vicinity of Chandigarh. The complainant purchased the unit in the project of M/s Premium Acre Infratech Pvt. Ltd. (hereinafter to be called as "Company") for the total consideration of Rs.33,50,000/-. The Company issued welcome letter dated 27.09.2011 allotting unit No.6301, Courtyard Avenue, TDI City, Sector 110, SAS Nagar (Mohali) vide allotment letter (Annexure C-1). Thereafter, Buyer's Agreement was executed between the parties at Chandigarh on 02.10.2012 (Annexure C-2). The complainant made total payment of Rs.31,20,000/- against the BSP of Rs.33,50,000/-. It was further stated that the Opposite Parties issued demand notice on 14.03.2013 and 04.07.2014 (Annexure C-5 colly.). The complainant made various visits to the office of the Company by the grievances regarding non-development at the site and non delivery of possession but the complainant was threatened to cancel her allotment. As per Condition No.9, possession was to be delivered within a period of 24 months from the date i.e. 02.10.2012 when the Agreement between the parties stood signed, failing which, the Company would be liable to pay compensation to the tune of Rs.7000/- per month as delay charges. It was further stated that there was some dispute between the Directors of the Company in August, 2013 and the Company tried to extract more money through its Director namely Sh. Parminder Singh Sehgal and started issuing notice with false demands to some of the allottees. It was further stated that when the complainant communicated telephonically with the officials of Opposite Party No.1, it assured that there was some delay in the project and asked to wait. It was further stated that despite receipt of the huge amount from the complainant, the Company failed to deliver possession, as the necessary permissions have not been obtained from the competent authorities ; basic amenities are not present and no completion certification has been issued till date. It was further stated that the Company threatening the complainant to pay the amount and also started issuing the cancellation notices to the consumers, after deducting the majority of the amount on their own, which is a totally unfair trade practice. Due to the aforesaid act and conduct of the Opposite Parties, they were deficient, in rendering service, as also, indulged into unfair trade practice. When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (in short "Act" only), was filed.
2. Opposite Parties No.1 & 2, in their joint written statement, have stated that the complainant has not come to this Commission with clean hands, as she failed to pay the amount in time and even not paid the complete amount due to the fact the flat was complete upto 95% despite receipt of less amount and only the finishing touches like removable fittings are pending since 17.12.2014. The complainant also failed to follow the terms and conditions of the Agreement & allotment letter and not responded to the different demand notices sent on 17.12.2014, 27.08.2015, 14.11.2015 and 25.12.2015 (Annexure R-7 colly.). It was further stated that the documents (Annexures C-1 & C-2) have not been issued by the authorized person but the terms and conditions of the said documents are same, as of the standard allotment letter and Agreement of the replying Opposite Parties. It was further stated that when the complainant did not respond to these different demand notices (Annexure C-7 colly.) then the replying Opposite Parties were left with no other alternative, but to cancel the unit of the complainant vide cancellation notice dated 25.05.2016 (Annexure R-8). It was admitted regarding receipt of the total amount of Rs.31,20,000/- from the complainant and still an amount of Rs.25,55,968/- was due upto 20.12.2016 (Annexure R-2), making the final product cost to the tune of Rs.56,75,968/- and she failed to pay the said amount and, as such, flat stood cancelled and she was informed through Annexure R-8 that she should come to complete the formalities and take back her refund amount, which was calculated as per the terms and conditions of Annexure C-2. It was further stated that final notice for possession, as per the Agreement, is always issued at the end when the complete payment as per the agreed plan is made without any delay whatsoever and the intermediate letters are just to inform about the status. It was further stated that the complainant made the last payment on 06.03.2013 and, thereafter, no payment was made and, therefore, the question of handing over of possession without taking the complete payment is out of question. It was further stated that the documents annexed by the complainant i.e Annexures C-1 and C-2 are forged and fabricated documents and could not be appreciated in the eyes of law, especially when FIR was registered against Mr.Sanjay Jain, Mr.Amit Jain & others for their illegal conspiracy and the fraud committed by them with the Company. It was further stated that the role played by Opposite Party No.3 alongwith one Sh.Amit Jain, who is signatory to the alleged Buyer Agreement (Annexure C-2) qua the forgery committed by them in preparing the allotment letter and Buyer Agreement, without any authority, which caused a great loss to the replying Opposite Parties. It was further stated that this Commission has no territorial jurisdiction to adjudicate the complaint, as Clause 36 of the Agreement clearly states that Courts at Delhi alone have the jurisdiction for adjudication of all the matters arising out in connection with the Agreement and even the concerned Chandigarh office is lying closed for the last so many years. It was further stated that 75% of the persons are fully satisfied and have paid their dues and have already been given the possession, whereas, only some of the persons are adamant of not making the payment, which they are legally liable to make. It was further stated that the complainant has not purchased the property for residential purpose, as nowhere in the complaint, she has stated that she required the flat for her residential purpose. This shows that the complainant wanted to earn profit and the flat is for investment purpose. It was further stated that the complainant wanted to take possession of the flat, in question, without paying the complete, full and in time payment. It was further stated that as per Annexure R-9 i.e. photographs shows that 95% of the flat construction is complete and the Company is ready to hand over possession to the complainant, if she made the payment according to Annexure R-2, which is to the tune of Rs.25,55,968/-. It was further stated that the complaint is not maintainable on the ground of non joinder of necessary party i.e. Sh.Amit Jain because he signed the Buyer's Agreement. It was admitted that all the rights are vested with the replying Opposite Parties, whereas, Opposite Party No.4 is the Master Developer of the land, in question. It was denied the total cost of the unit is Rs.33,50,000/- because it is the cost of only the Basic Sale Price of the unit and other costs, which is mentioned in summary calculation (Annexure R-2) under different heads. It was admitted that as per Clause 9 of the Agreement, possession was to be delivered within a time period of 24 months but is subject to other terms and conditions such as timely payment, as per the schedule opted by the complainant. It was further stated that the construction work suffered delay because of the fraud committed by the employees of the Company, which is mentioned in Annexures R-4 & R-5 and further stay orders passed from time to time by the Hon'ble High Court regarding the ban on sand mining. It was the duty of the complainant to make the payment in time but due to non-payment made by her, the replying Opposite Parties were forced to cancel the unit, as such, the compensation to the tune of Rs.7000/- per month as delayed charges is out of question. It was denied that the complainant made the telephonic calls to know about the actual status of the project. It was further stated that the replying Opposite Parties kept on issuing the notices to the complainant to come and see the construction level and make the next payment but she failed to respond, which has forced to cancel the flat. It was further stated that the question of completion certificate will come later on as and when the full payment as per Annexure R-2 is made by the complainant. It was further stated that neither there was any deficiency, in rendering service, on the part of the replying Opposite Parties, nor they indulged into unfair trade practice.
3. Opposite Party No.3 in his short reply, admitted that the complainant deposited an amount of Rs.31,20,000/- with Premium Acres Infratech Pvt. Ltd. It was stated that Sh. Parminder Singh Sehgal & Smt. Parminder Kaur Sehgal, alleged Directors - Premium Acres Infratech Pvt. Ltd. have not only defrauded the replying Opposite Party but also committed criminal breach of trust and several other frauds with the Company and, as such, he lodged an FIR (Annexure OP-3/1) against them and also attached copy of CFSL report (Annexure OP-3/2). It was further stated that due to the disputes between the Directors of the Company, the complainant should not be made to suffer. It was further stated that another FIR dated 13.04.2016 was registered against the captioned persons for cheating, fraud and breach of trust done by Mr. Kapil Aggarwal, Chartered Accountant C/o B.Aggarwal and Co. in criminal conspiracy with Mr.Parminder Singh Sehgal and his wife Smt. Parminder Kaur Sehgal and other associates (Annexure OP-3/5). It was further stated that Mrs. & Mr. P.S.Sehgal have left no stone unturned to harass all the allottees of the project of the Company by fabricating and manipulating the entire account statements of the allottees just to extort maximum money from the allottees. It was further stated that the letters have been issued by the Company on the instructions of Mr.P.S.Sehgal and the replying Opposite Party has been fraudulently disassociated by Mr.P.S.Sehgal since June, 2014 and hence the replying Opposite Party has not been dealing with the affairs of the Company since June, 2014. However, the dispute regarding the ownership and Directorship of the Company is pending before the Hon'ble Company Law Board, New Delhi. Hence, the replying Opposite Party could not be held liable for any kind of grievance of the complainant arising after June, 2014. It was further stated that neither there was any deficiency, in rendering service, on the part of replying Opposite Party, nor he indulged into unfair trade practice and prayed for dismissal of the complaint qua Opposite Party No.3.
4. Opposite Party No.4, in its reply, by way of affidavit of Mr. Deepak Nayyar, Chief Executive Officer of TDI Infratech, 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 Opposite Parties No.1 to 3, approached Opposite Party No.4 for purchase of 150 fully developed residential plots measuring 192 sq. yards each in order to develop the same and to further sell off the same to the prospective buyers. It was further stated that Opposite Party No.4 is 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 10.02.2012 executed between the parties. It was further stated that the complaint is 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.
5. Initially Mr.Sanjay Jain, Opposite Party No.3 appeared in person and filed repy but from 17.03.2017 none appeared on his behalf. Hence, Opposite Party No.3 was proceeded against exparte vide order dated 06.04.2017.
6. The complainant filed rejoinder to the written statement of Opposite Parties No.1 & 2, wherein she reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of Opposite Parties No.1 & 2.
7. The Parties led evidence, in support of their case.
8. We have heard the Counsel for the contesting parties and have gone through the evidence and record of the case, carefully.
9. The first question, that falls for consideration, is as to whether, this Commission has got territorial Jurisdiction to entertain and decide the consumer complaint, or not. No doubt, Counsel for Opposite Parties No.1 & 2, submitted that since the parties as per Clause 36 of the Buyer Agreement, agreed that the Courts at Delhi alone, would have Jurisdiction, for adjudication of all matters arising out or in connection with the same (Agreement). He further submitted that the concerned office at Chandigarh was lying closed for the last so many years, so, this Commission has got no territorial Jurisdiction, to entertain and decide the complaint. The submission of Counsel for Opposite Parties No.1 & 2, in this regard, being devoid of merit, is liable to be rejected, for the reasons, to be recorded hereinafter. In the first instance, it may be stated here, that the Consumer Foras' are not the Courts. It is pertinent to note that Buyer Agreement which was executed between the parties, at Chandigarh, on 10.02.2012 vide Clause 36 of the Agreement, only confers Jurisdiction on the Courts at Delhi. Under these circumstances, no help can be drawn, from this Clause for coming to the conclusion, that this Commission at Chandigarh, has no territorial Jurisdiction, to entertain and decide the instant complaint. In Associated Road Carriers Ltd. Vs. Kamlender Kashyap and Ors., I (2008) CPJ 404 (NC), it was held by the National Commission, that a clause of Jurisdiction, by way of an Agreement, between the parties, could not be made applicable, to the Consumer Complaints, filed before the Consumer Foras, as the Foras are not the Courts. It was further held, in the said case, that there is a difference between Section 11 of the Act, which is a para materia to Section 17 of the Act and the provisions of Sections 15 to 20 of the Civil Procedure Code, regarding the place of Jurisdiction. Now the plea of Counsel for Opposite Parties No.1 & 2 that the Company office of Chandigarh has closed and this Commission has no jurisdiction, has also no value, at all because at the time of booking of the unit by the complainant, the office of the Company was functioning at Chandigarh. It means that the Company kept the complainant in dark since no such communication was ever sent to the complainant regarding closing down of the Chandigarh office. Moreover, the allotment letter (Annexure C-1) annexed by the complainant, issued by the Company from their Chandigarh office clearly shows the Chandigarh address of the Company on the aforesaid document. As such, a part of cause of action, accrued to the complainant, at Chandigarh. Accordingly, this Commission at Chandigarh, in view of the provisions of Section 17 of the Act, has territorial Jurisdiction to entertain and decide the complaint. The submission of the Counsel for Opposite Parties No.1 & 2, in this regard, therefore, being devoid of merit, must fail and the same stands rejected.
10. The objection taken by Opposite Parties No. 1 & 2, to the effect that the complainant has not purchased the property for residential purpose, as she has nowhere mentioned in the complaint that she required the flat, in question, for residential purpose. As such, she purchased the same only for profit/investment and, as such, she cannot be termed as "Consumer" under the Consumer Protection Act, 1986. It may be stated here that there is nothing, on the record, that the complainant is a property dealer, and deals in the sale and purchase of property, on regular basis, and as such, the unit, in question, was purchased by her, by way of investment, with a view to resell the same, as and when, there was escalation in the prices thereof. Thus, in the absence of any cogent evidence, in support of the objection raised by Opposite Parties No.1 & 2, mere bald assertion i.e. simply saying that the complainant being investor, did not fall within the definition of a consumer, cannot be taken into consideration. It is pertinent to note that the complainant in para No.1 of her complaint has specifically stated that " the complainant dreamt of having her own house for many years, however, the complainant always wanted to set up her home in a locality/location of prestige, hence was waiting for some extremely well done housing scheme/project to come up near/in the vicinity of Chandigarh, UT, in which, the complainant could seek a residential unit for setting up her home." The complainant in para No.7 of her rejoinder has clearly stated that she purchased this property for her residential purpose for setting up her home. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta, 2016 (2) CPJ 316. The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. The complainant, thus, falls within the definition of a 'consumer', as defined under Section 2(1)(d) of the Act. Such an objection, taken by Opposite Parties No.1 & 2, therefore, being devoid of merit, is rejected.
11. The next question that falls for consideration is whether the complaint is maintainable on the ground of non-joinder of necessary party i.e. Mr.Amit Jain, who has signed the Buyer's Agreement. It may be stated here that the complainant booked the unit of M/s Premium Acres Infratech Pvt. Ltd. and paid the huge amount in respect of the unit and she did not know who is Mr. Amit Jain. If the aforesaid official/any other official received the amount of the unit from the complainant and signed the Buyer Agreement, it was done by him being an employee, who could receive the said amount on behalf of the Company. In the present case, we do not feel that Mr.Amit Jain is the necessary party. So, the objection taken by Opposite Parties No.1 & 2 has no force, at all and the same stands rejected.
12. The next question that falls for consideration is whether Annexures C-1 & C-2 i.e. allotment letter and Buyer Agreement attached by the complainant alongwith her complaint are forged and fabricated documents. The Counsel for Opposite Parties No.1 & 2 submitted that the documents Annexures C-1 & C-2 are forged and fabricated documents but the terms and conditions are the same as of the standard allotment letter and Buyer Agreement of the replying Opposite Parties. He further submitted that these documents are created with the active connivance with Mr.Sanjay Jain, Mr.Amit Jain and others for causing huge loss to the Company. He further submitted that Mr.Sanjay Jain (Opposite Party No.3) and Mr. Amit Jain, embezzled its (Company) huge amount and also played fraud with it (Company). He further admitted the receipt of the amount of Rs.31,20,000/- for the unit, in question. He further submitted that Mr.Amit Jain, who was not even authorized to sign any document of the Company had issued allotment letter and also entered into a Buyer Agreement and signed on behalf of the Company. He further submitted that an FIR registered against Mr. Sanjay Jain, Mr. Amit Jain and others for their illegal conspiracy regarding the fraud committed by them with the Company. It is, no doubt, true that Mr.Sanjay Jain and Mr.Amit Jain were the officials of the Company. On the other hand, Counsel for the complainant submitted that the complainant was being victimized due to the internal disputes amongst the Directors of the Company. It is true that the complainant booked the unit, in question. A bare perusal of the allotment letter (Annexure C-1) clearly reveals that unit No.6301(Ground Floor) was allotted in Sector 110, Mohali to the complainant. It is also the admitted fact that the complainant opted for Construction Linked Installment Plan, in which, Basic Sale Price of the unit is clearly mentioned as Rs.33,50,000/- (at page No.17 of the file) and the said allotment letter was duly signed by the complainant as well as Authorised Signatory of the Company. Thereafter, Buyer Agreement was executed between the parties at Chandigarh on 10.02.2012. A bare perusal of Construction Linked Installment Plan, mentioned in the Buyer Agreement, clearly reveals that Basic Sale Price is mentioned as Rs.33,50,000/- and the said Agreement was duly stamped and signed by the responsible officer of the Company on each and every page of the Agreement. It is not understandable that when the Company admitted regarding the booking of the unit, in question and receipt of the amount of Rs.31,20,000/- from the complainant, then how could they deny the issuance of allotment letter and execution of Buyer Agreement? It is admitted that the aforesaid disputed documents were signed by Mr.Amit Jain because he is on the reputed post of the Company. It is pertinent to note that the said unit was purchased by the complainant from the Company and not from any individual official of the Company. After receipt of the huge amount from the complainant, the Opposite Parties cannot be questioned regarding the authenticity of the documents. Mr.Amit Jain was one of the Directors of the Company, who had signed the allotment letter as well as Buyer Agreement on behalf of the Company. The allotment letter was issued by the Company on the letter head of the Company and bears the signatures of the former Director of the Company. It may be stated here that if Mr.Sanjay Jain and Mr.Amit Jain, appointed by the Company, played fraud with the Company then what was the fault of the complainant ? The said documents i.e. Annexure C-1 & C-2 issued by the aforesaid officials on behalf of the Company and not on his/their personal capacity. This was an internal affair of the Company vis-à-vis its Director who allegedly committed fraud with it (Company). If the aforesaid officials allegedly embezzled the huge amounts of the Company, and defrauded it, then it (Company) can proceed against them, for the recovery of amount, by filing a civil suit, and also under the criminal law by lodging an FIR. For their alleged acts of omission and commission, the third parties, cannot suffer. So, the objection taken by Counsel for Opposite Parties No.1 & 2 regarding the authenticity of both the documents (Annexures C-1 & C-2) has no force, at all, and the same stands rejected.
13. The next question, that falls for consideration, is as to whether, Opposite Parties No.1 & 2 rightly cancelled the unit of the complainant. It is no doubt, true that the complainant booked the unit in the project of Opposite Parties No.1 & 2/Company and Buyer Agreement was also executed between the parties, at Chandigarh, on 10.02.2012. As per Clause 9 of the Agreement, possession of the unit was to be delivered within a maximum period of 24 months from the date of Agreement i.e. latest by 09.02.2014. It is the admitted fact that the complainant deposited the total amount of Rs.31,20,000/- in respect of the unit, in question. According to Opposite Parties No.1 & 2, the complainant failed to pay the complete payment, as the flat was complete upto 95%, despite receipt of less amount and only the finishing touches like removable fittings are pending since 17.12.2014. Counsel for Opposite Parties No.1 & 2 further submitted that the complainant failed to respond to the demand notices sent on 17.12.2014, 27.08.2015, 14.11.2015 and 25.12.2015 (Annexure R-7 colly.) then the replying Opposite Parties were left with no other alternative, to cancel the unit of the complainant vide cancellation notice dated 25.05.2016 (Annexure R-8). He further submitted that the complainant deposited the amount of Rs.31,20,000/- and still an amount of Rs.25,55,986/- was due upto 20.12.2016 (Annexure R-2), but she failed to pay the said amount, as such, flat stood cancelled and she was informed through Annexure R-8 that she should come to complete the formalities and take back her refund amount, which was calculated as per the terms and conditions of Annexure C-2. Opposite Parties No.1 and 2 also placed on record photographs of the villa to prove that the unit is almost complete. It was further stated that the complainant made the last payment on 06.03.2013 and, thereafter, no payment was made, so the question of handing over of possession did not arise at all. On the other hand, the complainant in her rejoinder denied regarding receipt of letter dated 27.08.2015 (Annexure R-7), as the same was never posted by the Company because no postal receipt is affixed with the said document. The complainant further denied regarding receipts of letter/demand dated 14.11.2015 & 25.12.2015 (Annexure R-7) as the same were sent by Opposite Parties No.1 and 2 at the wrong address of the complainant. A bare perusal of the aforesaid both letters clearly reveals that the said letters were sent by the Company at H.No.3188, Industrial Co-operative House Building Society, Sector 15-D, Chandigarh but the complainant is residing at H.No.3188, Industrial Cooperative House Building Society, Sector 51, Chandigarh. The same is the case of Annexure R-8 because the address of the complainant was wrongly mentioned. Thus, it is patently clear that Annexures R-7 and R-8 are prepared by Opposite Parties No.1 and 2 in order to mislead this Commission. It is clearly proved that Annexures R-7 & R-8 are not genuine documents because these documents were never served upon the complainant. If for the sake of arguments, Annexure R-7 is considered to be a genuine document, even then in these documents, Opposite Parties No.1 and 2 were nowhere offering possession and only compelling the complainant to make the payment. It is pertinent to note that out of the BSP of Rs.33,50,000/-, the complainant paid an amount of Rs.31,20,000/- till 06.03.2013 i.e. more than 90% of the amount but Opposite Parties No.1 and 2 failed to issue any final notice for possession to the complainant. According to the complainant, she deposited the amount, as per the demand raised by Opposite Parties No.1 and 2 but when the complainant observed that she is being cheated by Opposite Parties No.1 and 2 , as they received payment for the unit, in question, but no development and construction was being carried out by the Company, she stopped the further payments and visited the office of the Company to hand over possession of the unit, in question, but all in vain. It is relevant to mention here that Opposite Parties No.1 and 2 did not bother to intimate the complainant regarding the progress of the construction work of the unit. After perusal of the documents, we found that the Company did not inform regarding stage wise construction to the complainant, so that she could make the payment, as per the Construction Linked Installment Plan, opted by her. It was practically impossible for the complainant to again and again visit the site to check the construction status and make the payment. Moreover, the complainant denied the receipt of any cancellation notice (Annexure R-8) from Opposite Parties No.1 & 2. Even, no evidence or postal receipts has been placed on record by the Company that the cancellation notice was ever issued to the complainant or in which mode it was sent to her because neither they produced any courier receipt nor Regd. AD to prove the said fact. So, we are of the view that Opposite Parties No.1 & 2 hurriedly cancelled the unit of the complainant and, therefore, the said cancellation notice (Annexure R-8) is null and void.
14. As regards restoration charges of Rs.6,70,000/- demanded by Opposite Parties No.1 & 2 in Annexure R-2 is concerned, when the cancellation notice itself dated 25.05.2016 (Annexure R-8) is declared as null and void, we are of the view there is no issue for levying charges for restoration the same.
15. As regards inflation charges of Rs.2,32,674/-, as per Annexure R-2, is concerned, it may be stated here that Clause 11 of the Buyer Agreement, reads as under:-
"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 Allottees(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".
It is evident, from afore-extracted Clause 11 of the Buyer Agreement, that Opposite Parties No.1 & 2, were entitled to escalation in cost, during the course of construction work, based on All India Wholesale Index for all commodities. Based on this Clause, Opposite Parties No.1 & 2, submitted Annexure R-3 at page 66 i.e. Wholesale Price Index. The Buyer Agreement was executed between the parties on 10.02.2012 and possession of the unit, in question, was to be delivered, as per Clause 9 of the same (Buyer Agreement), within 24 months i.e. on or before 09.02.2014. The parties were bound by the terms and conditions of the Agreement, duly signed by them. Under these circumstances, Opposite Parties No.1 & 2, were entitled to escalation in cost of the unit, in question, if any, for the years from 2012-2013 & 2013-2014. For the years 2012-2013, the inflation charges shown, in the document Annexure R-3 are Rs.62,239.54Ps and for 2013-2014, the same have been shown as Rs.46,935.48Ps. This escalation in cost was worked out, by Opposite Parties No.1 & 2, on the basis of Wholesale Price Index of the commodities, for these years. No cogent and reliable evidence was produced by the complainant, to rebut the calculation of inflation charges made by Opposite Parties No.1 & 2, for the years 2012-2013 & 2013-2014. Under these circumstances, the complainant is liable to pay Rs.1,09,175.02 (say Rs.1,09,175/-). (Rs.62,239.54Ps. plus (+)Rs.46,935.48Ps), on account of escalation in cost, as calculated by Opposite Parties No.1 & 2.
16. So far as the escalation in cost, with regard to the remaining years is concerned, Opposite Parties No.1 & 2, are not entitled to the same. In case, for the years aforesaid Opposite Parties No.1 & 2, are also held entitled to escalation in cost, then there will be no end to their nefarious activities. If the unscrupulous builders continue delaying construction of the units/flats/villas, allotted to the consumers, for years together, then the latter cannot be penalized for the same. If the builders are given liberty to continue construction of the units, beyond the promised date of delivery of possession, as per the Agreement, without existence of any circumstances, beyond their control, then they may delay the construction, for years together, and the consumers will suffer at their hands, on account of making payment of escalation in cost. It would thus amount to indulgence into unfair trade practice. The submission of Opposite Parties No.1 & 2 in this regard, being devoid of merit, must fail, and the same stands rejected.
17. As far as the levying of delayed interest payment of Rs.4,85,766/- is concerned, it may be stated here that the complainant was not informed about the stage of construction of the unit, in question because it is not practically possible for the complainant to visit again and again at the site and check the status of construction and make the payment. So, we are of the view that since the complainant was not informed regarding the stages of construction at the site and the construction at the site was not going on as per the schedule, no delayed payment interest is, therefore, leviable.
18. With regard to deducting of Rs.2,38,997/- regarding delayed interest payment is concerned, it is true that Opposite Parties No.1 and 2 adjusted the payments made by the complainant against various heads arbitrarily. Moreover, the complainant was not informed regarding stages of the construction, since the complainant opted Construction Linked Payment Plan. In the absence of the knowledge of the complainant with regard to stages of construction of the unit, Opposite Parties No.1 and 2 cannot charged delayed interest payment. It is also pertinent to mention here that out of the basic sale price, as agreed in the allotment letter, the complainant had made more than 95% of the payment. It is apparent from Annexure R-2 that Opposite Parties No.1 and 2 have wrongly deducted an amount of Rs.2,38,997/- towards delayed interest payment and the same needs to be credited back to the account of the complainant.
19. The next question, that falls for consideration, is as to what amount is required to be paid by the complainant. It is, no doubt, true that the complainant opted Construction Linked Installment Plan and as per the payment plan (at page No.17 of the complainant's documents), the total consideration of the unit, in question, was Rs.37,01,300/-, which includes Basic Sale Price + EDC & PLC. It is not disputed that the complainant paid the total amount of Rs.31,20,000/- for the unit, in question. A bare perusal of the demand raised by Opposite Parties No.1 and 2 (Annexure R-2), it is clear that the Company after adjusting the amount paid by the complainant under different heads, demanded an amount of Rs.25,55,968/- from the complainant. After going through the demand raised by Opposite Parties No.1 and 2 vide Annexure R-2, we are of the considered opinion that the following amounts are liable to be paid by the complainant at the time of taking over the possession :-
S.No Heads Amount (Rs.)
1.
Basic Sale Price + EDC + PLC 9,29,400/-
2. Service Tax + Building Cess 39,533/-
3. Club charges 50,000/-
4. IFMS 50,000/-
5. Sewerage 20,000/-
6. Electricity 30,000/-
7. Water 30,000/-
8. Service tax on (sewerage + Electricity + water charges) 12,000/-
9. Inflations 1,09,175/-
10. Add. Maintenance charges) 6,595/-
Total Rs.12,76,703/-
Less Rs.2,38,997/- already adjusted in delayed payment interest Amount to be paid Rs.10,37,706/-
Thus, as per the calculations made in the table above, Opposite Parties No.1 & 2, are legally entitled to only Rs.10,37,706/-, under various heads, as discussed hereinbefore.
20. Whether, the complainant is entitled to compensation, under Section 14(1)(d) of the Act, on account of mental agony and physical harassment and injury caused to her, is the next question, that requires determination. The complainant booked the unit, in question, with the hope to have a shelter over her head, but her hopes were dashed to the ground, when Opposite Parties No.1 & 2, failed to deliver physical possession of the unit, in question, within the stipulated period, despite the fact that huge amount of Rs.31,20,000/- was paid by her. Even as per the Agreement, possession of the unit was to be delivered within a period of 24 months from the date of execution of the Agreement i.e. latest by 09.02.2014 but they failed to deliver the unit within the stipulated period and neither informed the complainant regarding stage wise construction. In this view of the matter, the complainant, in our considered opinion, is entitled to compensation, for mental agony and physical harassment caused to her, at the hands of Opposite Parties No.1 & 2, to the tune of Rs.2.00 lacs (two lacs), which could be said to be reasonable.
21. Since we are granting possession alongwith compensation and litigation expenses, therefore, the complainant is not entitled to any other relief, as claimed by her, in the prayer clause.
22. No doubt, Opposite Parties No.1 and 2 submitted in their written statement that Mr.Sanjay Jain had embezzled huge amount of the Company and had played fraud with them and, as such, a criminal case against him and employees, referred to above, was lodged. It may be stated here, that if there was any dispute between Opposite Parties No.1 & 2 and its Director Sanjay Jain and he allegedly played fraud with the Company and allegedly embezzled its amount, then the third party i.e. the consumers were not to suffer. The consumers while dealing with the Company, did not know as to who were the Directors thereof, and how their internal affairs were being managed. In case, Mr. Sanjay Jain, former Director of Opposite Parties No.1 and 2, allegedly played fraud with them, or allegedly embezzled the amount belonging to the Company, then the consumers could not be held liable to suffer for that. Opposite Parties No.1 and 2 had their legal remedy of recovery of the amount allegedly embezzled by Sanjay Jain, Ex-Director, by filing a Civil Suit and also proceeding against him under the criminal law. Opposite Party No.3 is no longer the Director of Opposite Parties No.1 and 2. Thus, no liability can be fastened upon Opposite Party No.3 by the complainant. The complaint against Mr.Sanjay Jain (Opposite Party No.3) deserves to be dismissed.
23. Coming to the liability of Opposite Party No.4, it may be stated here, that the Buyer Agreement (Annexure C-2) was executed between the complainant and Opposite Parties No.1 and 2. Even the services of Opposite Party No.4 were not hired by the complainant, and, as such, the question of payment of consideration to it never arose. Hence, the complaint against Opposite Party No.4 is liable to be dismissed.
24. No other point, was urged by the Counsel for the Parties.
25. For the reasons recorded above, the complaint is partly accepted with costs, against Opposite Parties No.1 & 2, in the following manner:-
(i) Complainants are directed to make the payment of sale consideration of the balance amount of Rs.10,37,706/- to Opposite Parties No.1 & 2, within a period of one month from the date of receipt of a certified copy of the order.
(ii) Opposite Parties No.1 & 2 shall jointly and severally hand over the legal physical possession of the unit, in question, within a period of four months, to the complainant, from the date of receipt of a certified copy of this order, on payment of the legally due amount, by the complainant.
(iii) Opposite Parties No.1 & 2 shall jointly and severally execute the sale/conveyance deed and get it registered in the name of the complainant after handing over the actual physical possession of unit, in question, 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 complainant.
(iv) Opposite Parties No.1 & 2 are further jointly and severally, directed to pay compensation, in the sum of Rs.2.00 lacs (two lacs) for causing mental agony and physical harassment, to the complainant, within two months from the date of receipt of a certified copy of this order.
(v) Opposite Parties No.1 & 2 are further jointly and severally, directed to pay cost of litigation, to the tune of Rs.50,000/- to the complainant.
(vi) In case the order is not complied with, within the stipulated period, as indicated above, then Opposite Parties No.1 & 2 shall be jointly and severally liable to pay the amount mentioned in Clause (iv) alongwith interest @12% per annum from the date of default, till realization, besides payment of cost of litigation.
26. Complaint qua Opposite Parties No.3 & 4 stands dismissed.
27. Certified Copies of this order be sent to the parties, free of charge.
28. The file be consigned to Record Room, after completion.
Pronounced.
24.05.2017 Sd/-
[JUSTICE JASBIR SINGH [RETD.] PRESIDENT Sd/- [DEV RAJ] MEMBER Sd/- [PADMA PANDEY] MEMBER rb