State Consumer Disputes Redressal Commission
M/S Barnala Builders And Property ... vs Krishan Gopal on 5 April, 2016
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 227 of 2016
Date of institution: 17.3.2016
Date of Decision: 5.4.2016
M/s Barnala Builders & Property Consultants, SCO No. 1, Zirakpur Patiala
Road, Opp. Yes Bank, Zirakpur, Punjab through Sanjiv Choudhry,
Accounts Head.
Appellant/Op No.1
Versus
Krishan Gopayl R/o House No. 1637, Saini Vihar, Phase 3, Baltana,
Zirakpur, Distt. Mohali.
Respondent/Complainant
First Appeal against the order dated 25.1.2016
passed by the District Consumer Disputes
Redressal Forum, SAS Nagar (Mohali).
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Jasbir Singh Gill, Member
Present:-
For the appellant : Sh. Ambrish Sharma, Advocate
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
First Appeal No. 227 of 2016 2 Appellant/Op No.1 (hereinafter referred as Op No.1) has filed the present appeal against the order dated 25.1.2016 passed by the District Consumer Disputes Redressal Forum, SAS Nagar (Mohali) (hereinafter referred as the District Forum) in consumer complaint No. 263 dated 4.6.2015 vide which the complaint filed by respondent/complainant(hereinafter referred as complainant) was allowed with the direction to Ops to pay penalty @ Rs. 5/- per sq. ft. area from 1.12.2014 till actual handing over of the possession and pay lumpsum compensation of Rs. 20,000/- whereas with regard to 'a' "to modify the demand notice dated 14.11.2014 qua interest on delayed payment, the version given by the President was dissented by two Members as the same was vague.
2. Complaint was filed by complainant under the Consumer Protection Act, 1986 (in short 'the Act') against opposite parties (hereinafter referred as Ops) on the averments that complainant booked one flat with Ops and he was allotted flat No. 102, Block D4, in Maya Garden City and complainant had made the payment of instalments as per terms of the payment whenever demanded by Ops. However, on 14.11.2014, complainant received a letter from Ops, it was intimated that flat was ready for possession and complainant was asked to take the possession by clearing all dues. The amount demanded by Ops in the above mentioned letter was totally unreasonable. Service tax and maintenance charges were also wrongly demanded. Complainant immediately contacted Ops and requested Ops to clarify regarding the charges demanded by Op and also requested to provide the completion certificate and explanation First Appeal No. 227 of 2016 3 regarding the interest so that complainant could make the payment and taken possession but till date neither any explanation regarding interest nor completion certificate of the project was provided. Complainant was allotted flat vide allotment letter dated 24.9.2011 and was asked to sign agreement to sell and after great exercise agreement to sell was executed on 12.9.2012 and complainant had opted construction link plan. The interest amounting to Rs. 2,44,794/- demanded by Ops in the letter dated 14.11.2014 was totally illegal and complainant made all the payments timely as and when received and demanded by Ops. Complainant had made a payment of Rs. 6,99,434/- before signing the agreement to sell on 12.9.2012. In response to demand of Rs. 10,10,671/- vide letter dated 28.9.2012, he had paid the same on 1.10.2012. Then complainant had received another letter dated 10.12.2012 demanding Rs. 7,60,046/- and the payment was made on 12.12.2012. On 11.2.2013, Ops demanded another payment of Rs. 7,09,054/- and complainant had made the payment of Rs. 65,000/-, Rs. 1,00,000/- and Rs. 4,05,035/-, which was actually paid as per payment plan. Then he received another notice dated 29.7.2013 from Ops demanding a sum of Rs. 3,80,000/-. Complainant immediately made payment of Rs. 80,000/- on 29.7.2013 and a payment of Rs. 3,00,000/- was paid on 5.8.2013 and remaining amount 10% was agreed to be paid at the time of possession on completion of the project. As per agreement to sell dated 19.9.2012, Op was required to execute the sale deed on or before 30.11.2014 and liable to hand over the possession, failing which Ops shall be liable to pay charges @ Rs. 5/- per sq. ft. per First Appeal No. 227 of 2016 4 month. It was alleged that there was unfair trade practice and deficiency in service on the part of Ops. Hence, the complaint with the direction to Ops to pay the payment charges of Rs. 5/- per sq. ft. per month from 1.12.2014 till possession, Rs. 50,000/- as compensation and Rs. 51,000/- as litigation expenses.
3. Complaint was contested by Ops, who filed written statement taking preliminary objections that it was not a consumer dispute as complainant had raised a dispute with regard to settlement of account. Complainant further raised the dispute of interest as demanded by Ops on delayed payment, which was a part of pricing policy of Ops. Complainant indulged in supresso very and sugestio falsi and had not approached the Forum with clean hands; Complainant filed this complaint with malafide intention, just to get undue advantage against Ops and that the complaint filed by the complainant was hopeless and without any cause of action. On merits, it was admitted that Ops are promoter and builder of housing project in question and their housing project was equipped with all the basic amenities. In September, 2009, complainant had approached Ops for booking of flat. After going through all the demand and related documents, maps, sanction plans, approval letters and layout plan of housing project, complainant booked flat No. 404 in Block D- 6, Maya Garden City, Zirakpur and accordingly, Ops had issued allotment letter No. 1381 dated 24.9.2011 in the name of the complainant. After almost 1 year, due to personal / financial problem on 8.9.2012, complainant gave a request for change of his flat and Ops changed the flat and flat No. 102, Block D-4 was allotted against First Appeal No. 227 of 2016 5 earlier allotted flat No. 404. Complainant was required to deposit 90% of the cost within 410 days from the date of booking. However, payment due and payment made by the complainant was as under:-
Payment Due Payment Made 24th November 2011 Rs. Till 24th November, 2011 Rs. 1,00,000/- stand due 5,24,434/- paid.
Till 24th December 2011 Rs. Till 24th December 2011 Rs. 5,70,035/- total dues. 5,24,434/- total paid.
Till 22th February 2012 Rs. Till 22th February 2012 Rs. 11,40,070/- total dues. 5,24,434/- total paid. Till 22th April 2012 Rs. Till 22th April 2012 Rs. 6,99,434/-
17,10,105/- total dues. total paid.
Till 11th July 2012 Rs. 22,80,140/- Till 11th July 2012 Rs. 6,99,434/-
total dues. total paid. Till 29th October 2012 Rs. Till 29th October 2012 Rs. 28,50,175/- total dues. 17,10,105/- total paid. Till 07th January 2013 Rs. Till 07th January 2013 Rs. 34,20,210/- total dues. 24,70,151/- total paid.
As such, due to delayed payment, complainant was liable to pay agreed interest @ 20% p.a., therefore, complainant himself was a defaulter, he did not pay the instalments as per the payment schedule. Service Tax, Maintenance Charges and balance cost was to be provided by the complainant. Terms and conditions/payment schedule was specifically mentioned in the flat booking application. Complainant was required to clear all his dues before taking over the First Appeal No. 227 of 2016 6 possession of the flat. There was no deficiency in service or any unfair trade on the part of Ops. Complaint was without merit, it be dismissed.
4. The parties were allowed by the learned District Forum to lead their evidence.
5. In support of his allegations, the complainant had tendered into evidence his affidavit Ex. CW-1/1 and documents Exs. C-1 to C-9. On the other hand, Ops had tendered into evidence affidavit of Sandeep Bansal, Manager Ex. Op-1/1 and documents Exs. Op-1 to Op-9.
6. After going through the allegations in the complaint, written version filed by Ops, evidence and documents brought on the record, the learned District Forum allowed the complaint with the direction to Ops as under:-
(a) to modify the demand notice dated 14.11.2014 qua interest levied on delayed payment, if any, and withdraw the maintenance charges demanded vide letter dated 14.11.2014.
(b) to pay to the complainant penalty @ Rs. 5/- per sq. ft. per month for 1307 sq. ft. area from 1.12.2014 till actual handing over of the possession.
(c) pay a lump sum compensation of RS. 20,000/- (Rs.
Twenty thousand only) for mental agony, harassment and costs of litigation."
However, two Members gave a dissenting view with regard to relief Clause 'a' as under:-
First Appeal No. 227 of 2016 7
"We don't agree with Clause (a) of the order of the Ld. President of this Forum vide which the Ld. President has directed to the OP, "(a) to modify the demand notice dated 14.11.2014 qua interest levied on delayed payment, if any, and withdraw the maintenance charges demanded vide letter dated 14.11.2014" on the point that this direction is a vague and unclear direction. Our view is that direction should be specific and clear."
Since the decision of the President on Clause 'A' was not admitted by majority Members, therefore, the view taken by majority Members will carry.
7. Now we are left with Clause (b) and (c). Mainly it is Clause (b) under which penalty @ Rs. 5/- per sq. ft. per month w.e.f. 1.12.2014 till actual handing over the possession has been allowed to the complainant.
8. It has been argued by the counsel for the appellant that the date of possession was fixed as November, 2014 but the complainant himself was a defaulter, therefore, Clause for delivery of possession upto November, 2014 will not apply, therefore, the complainant will not be entitled to compensation @ Rs. 5/- per sq. ft. per month as referred in the order. Provision with regard to the penalty @ Rs. 5/- per sq. ft. has been admitted and it has also been admitted that the possession was to be delivered upto November, 2014.
9. Now it is to be seen whether the complainant was a defaulter. The allotment letter is dated 10.12.2012 wherein its cost First Appeal No. 227 of 2016 8 has been fixed as Rs. 38,00,233/-. The payment plan 'A' has also been placed on the record. Rs. 1 lac was to be paid at the time of booking, 15% within 10 days of booking, within 45 days 80% and 5% on completion of the project whereas in the construction plan 'B', the payment was to be paid as under:
Due Date Initial Booking Amount with Rs. 1,00,000/- (One Lac) Application Within 30 days from the date of 15% of BSP (Inc. Initial Booking application Amount) Within 90 days from the date of 15% of BSP application Within 150 days from the date of 15% of BSP application Within 230 days from the date of 15% of BSP application Within 340 days from the date of 15% of BSP application Within 410 days from the date of 15% of BSP application On Completion of Project 10% + Stamp Duty + IBMS + Car Parking Charges + any other charges for additional load if required + any other charges applicable.First Appeal No. 227 of 2016 9
As per the averments in the complaint, a sum of Rs. 6,99,434/- was made before executing the agreement to sell dated 12.9.2012, then Rs. 10,10,671/- was paid on 28.9.2012, then another payment of Rs. 7,60,046/- was paid on 10.12.2012. Then another payment of Rs. 65,000/-, Rs. 1,00,000/- and Rs. 4,05,035/- on 29.7.2013, Rs. 80,000/- was paid and Rs. 3,00,000/- was paid on 5.8.2013. Total Rs. 34,20,186/- and remaining 10% was to be paid at the time of handing over the possession, in additional to stamp duty + IBMS + Car Parking Charges, therefore, this amount indicated that 90% amount has been paid by the complainant as agreed between the parties as per the agreement.
10. Now with regard to offer of possession, one letter of allotment was issued on 14.11.2014. In the complaint in para No. 6, it has been specifically mentioned that complainant requested Ops to provide the completion certificate and explanation regarding the interest. However, Ops failed to give the completion certificate. No such completion certificate has been placed on the record, therefore, without completion certificate from the competent authority mere offer of possession of flat is not sufficient. First Appeal No. 729 of 2013 titled as "Inderjit Singh Bakshi versus S.M.V. Agencies Pvt. Limited"
decided on 30.11.2015 and in para No. 9 of the judgment, it was observed that respondent offered the possession in 2012 and then in 2013 whereas as per the agreement it was required to be delivered in the year 2009. Admittedly, in the year 2012 or 2013 respondent was not in possession of the completion certificate from the competent authority. It was stated that it was applied in the year 2015. First Appeal No. 227 of 2016 10 Therefore, offer of possession stated to have been made to the complainants was no offer at all and allottee is not obliged to take a possession of flat/apartment unless it is complete in every respect including the completion certificate. Therefore, in view of the facts on the record and judgment referred above, without completion certificate, it cannot be said that offer of possession by the Ops was genuine offer or it was just an excuse to save himself to pay the penalty regarding late delivery of possession. In these circumstances, the order passed by the District Forum to pay penalty at the agreed rate of Rs. 5/- per sq. ft. per month is justified order and amount of Rs. 20,000/- as compensation passed is also justified keeping in view the deficiency in service on the part of Op.
11. During the course of arguments, counsel for the appellant/Op was unable to make any point on the basis of which the order passed by the District Forum could be set-aside and make any point regarding the admission of the appeal. Therefore, we dismiss the appeal in limine.
12. The appellant had deposited an amount of Rs. 25,000/- with this Commission in the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to respondent by way of a crossed cheque/demand draft after the expiry of 45 days, from the despatch of the order to the parties; subject to stay, if any, by the higher Fora/Court.
13. Remaining amount, if any due, shall be paid by appellant to respondent within 30 days from the receipt of the copy of the order. First Appeal No. 227 of 2016 11
14. The arguments in this appeal were heard on 30.3.2016 and the order was reserved. Now the order be communicated to the parties as per rules.
(Gurcharan Singh Saran)
Presiding Judicial Member
April 5, 2016. (Jasbir Singh Gill)
as Member