State Consumer Disputes Redressal Commission
Mohan Lal Goyal vs Premium Acres Inf. on 29 January, 2016
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Consumer Complaint No. : 270 of 2015 Date of Institution : 12.11.2015 Date of Decision : 29.01.2016 Mohan Lal Goyal son of Sh.Gian Chand, resident of House No.1650, Progressive Society, Sector 50-B, Chandigarh. .....Complainant Versus Premium Acres Infratech Pvt. Ltd., (Earlier at SCO No.56-57, 3rd Floor, Sector 17-D, Chandigarh), Now at SCO No.139-141, First Floor, Sector 17-C, Opposite Mehfil Restaurant, Chandigarh, through its Managing Director Mr. Parminder Singh Sehgal. Premium Acres Infratech Pvt. Ltd., Registered Office, 17/6, Industrial Area, Gali No.10, Anand Prabat New Rohtak Road, New Delhi, through its Managing Director/Authorized Signatory. .... Opposite Parties Complaint under Section 17 of the Consumer Protection Act, 1986. BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER
Argued by: Sh.Savinder Singh Gill, Advocate for the complainant.
Sh.Parminder Singh, Advocate for the opposite parties.
PER DEV RAJ, MEMBER The facts, in brief, are that the complainant, with a view to own a residential unit, for residential purpose, applied to the opposite parties, for allotment of a built-up floor, in their project namely 'The Court Yard' in Mega Housing Project of TDI City, in Sector 110, Mohali, Punjab, vide application dated 05/10/2011. As per the complainant, the total amount of Rs.10,05,000/- on different dates, for the period from 10.05.2011 to 09.11.2011, towards booking of the said unit, was paid by him, to the opposite parties. Subsequently, the complainant was allotted unit No.15101, measuring 1440 square feet, (in short the unit), in the said project, vide allotment letter dated 10.09.2011, copy whereof is Annexure C-1.
Thereafter, Buyer Agreement dated 09.11.2011, Annexure C-2 (in short the Agreement), was executed between the parties, in respect of the unit, in question. Total sale consideration of the unit, in question, was fixed at Rs.40,36,300/- i.e. Rs.33,50,000/- towards Basic Sale Price plus (+) External Development Charges (EDC) to the tune of Rs.1,16,800/-, and Preferential Location Charges (PLC), to the tune of Rs.5,69,500/-, as is also evident from the payment plan, at page 28 of the file, forming part of the Agreement.
As per Clause 9 of the Agreement, possession of the unit, in question, was to be delivered by the opposite parties, within a period of 24 months (18 months plus 6 months grace period) from the date of execution of the same (Agreement dated 09.11.2011) i.e. on or before 08.11.2013, failing which they were liable to pay Rs.7,000/- per month, as penalty/ compensation, for the period of delay.
It was further stated that the complainant made timely payments, towards price of the unit, in question, as and when demanded by the opposite parties. As such, apart from Rs.10,05,000/-, referred to above, the complainant made further payment of Rs.33,93,500/-, for the period from December 2011 to April 2014. In this manner, the total amount of Rs.43,98,500/- against Rs.40,36,300/- had been paid by the complainant, but possession of the unit, was not offered to him, what to speak of delivery thereof.
It was further stated that despite making payment of Rs.43,98,500/- against Rs.40,36,300/- i.e. Rs.3,62,200/-, in excess of the sale consideration of unit, the opposite parties vide letter dated 27.08.2014 Annexure C-4, made another demand of Rs.6,45,798/-, under various heads like IFMS, electrification charges, water connection charges etc., towards the said unit. It was further stated that, thereafter, another letter dated 27.12.2014 Annexure C-5 was received from the opposite parties, wherein, they raised demand of Rs.6,84,981/-. It was also mentioned in the said letter that 90% of construction work has been completed.
It was further stated that physical possession of the unit, in question, was actually required to be delivered by the opposite parties, on or before 08.11.2013, as per Clause 9 of the Buyer's Agreement, but they failed to do so, as a result whereof, the hopes of the complainant to live therein alongwith his family, were dashed to ground, which also caused him financial loss towards rent, being paid by him, to the landlords, where he is presently residing alongwith his family members.
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 complainant, 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, seeking directions to the opposite parties to deliver possession of the unit, in question, or in the alternative, refund the amount deposited alongwith interest @18% p.a., from the respective dates of deposits, till realization; pay compensation to the tune of Rs.5 lacs, for mental agony and physical harassment; penalty @Rs.7000/- per month, for the period of delay, from 08.11.2013 till delivery of possession; rental amount paid by him to the landlord, from November 2013 till delivery of possession; litigation expenses, to the tune of Rs.1 lac and also to withdraw the demands made after 28.05.2014.
The opposite parties, in their joint written version, pleaded that since, as per Clause 36 of the Agreement, only the Courts at Delhi, or at the most, the State Commission/District Forum Mohali, Punjab, had Jurisdiction to adjudicate any dispute, arising between the parties, in respect of the unit, in question, as such, this Commission, at Chandigarh, has got no territorial Jurisdiction, to entertain and decide the instant complaint. It was further pleaded that since complicated question of facts regarding the payments made and demanded and signing of Agreement Annexure C-2 dated 09.11.2011 by an unauthorized person of the opposite parties, were involved in the present case, this Commission, in summary proceedings, could not adjudicate the same and, as such, the complainant was required to be relegated to the Civil Court. It was further pleaded that no proper court fee has been affixed, in respect of the said complaint. Purchase of the unit, in question, by the complainant was not disputed. It was also not disputed that against the total sale consideration of Rs.40,36,300/-, as mentioned in the payment plan, the complainant had paid an amount of Rs.43,98,500/- towards the said unit. It was further stated that, no doubt, as per the payment plan, the total sale consideration of the unit, in question, was mentioned as Rs.40,36,300/-, yet, apart from that, the complainant was also required to pay various charges, in respect of the unit, in question, which included inflation charges, club membership charges, services tax on services, IFMS, sewerage, electricity water etc. etc., which were legally demanded by the opposite parties. It was stated that though the Agreement was signed by a person, who was not authorized to do so, yet, for the sake of maintaining good relations with the customer(s), the opposite parties honoured the terms and conditions thereof. It was stated that, no doubt, possession of the unit, in question was to be delivered within 24 months, from the date of execution of the Agreement dated 09.11.2011, yet the complainant could not claim the same, as he breached the terms and conditions of the same (Buyer's Agreement), by not making timely payments, in respect of the same (unit). It was further stated that there was stay on the mining of sand, in the area, by the Punjab and Haryana High Court, and, as such, there was some delay in construction of the unit. It was further stated that, apart from that there was some delay, in construction of unit, because of fraud committed by some employees of the opposite parties. It was further stated that construction work of the unit was complete, and, in case, the complainant makes payment of outstanding amount of Rs.9,08,592/- as depicted in Annexure R-2 (colly.), possession of the same (unit) would be handed over within a period of 30 days, from the date of making the said payment. It was further stated that, not only this, in the first instance, possession of the unit, in question, was offered to the complainant, vide letter dated 27.08.2014 Annexure C-4, followed by letters dated 10.09.2015 Annexure R-7 and 19.11.2015 Annexure R-8, but he failed to make the payment of amount due towards the said unit. It was further stated that the opposite parties had already given possession of the units, to a number of similarly located allottees, in the said project. It was further stated that fault lays on the part of the complainant, as he failed to pay the remaining amount, in respect of the unit, in question, demand whereof was made from him. It was further stated that neither there was any deficiency, in rendering service, on the part of the opposite parties, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
In the rejoinder, filed by the complainant, he reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of the opposite parties. However, receipt of letters dated 10.09.2015 Annexure R-7 and 19.11.2015 Annexure R-8, was specifically denied.
The complainant, in support of the averments contained, in the complaint, submitted his affidavit, by way of evidence, alongwith which, a number of documents were attached.
The opposite parties, in support their case, submitted the affidavit of Sh. Ranjit Singh, their General Manager (Legal and Administration), by way of evidence, alongwith which, a number of documents were attached.
We have heard Counsel for the parties, and have gone through the evidence and record of the case, carefully.
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. The submission of Counsel for the opposite parties, that since the parties, as per Clause 36 of the Buyer's Agreement, agreed that only the Courts at Delhi, or at the most, the State Commission/District Forum Mohali, Punjab, alone would have Jurisdiction, for adjudication of all disputes arising out or in connection with the same (Agreement), this Commission has got no territorial Jurisdiction, to entertain and decide the complaint, 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 for determining the territorial jurisdiction, to entertain and decide the complaint, the Consumer Foras are bound by the provisions of Section 11 of the Act. 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. It was further held, in the said case, that there is a difference between Section 11 of the Act, which is 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. Otherwise also, in the instant case, the Agreement, was executed between the parties, at Chandigarh, as is evident from page 15 of the file. 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 Counsel for the opposite parties, in this regard, therefore, being devoid of merit, must fail and the same stands rejected.
Now coming to the question, regarding construction of unit(s) by the opposite parties, in the said project, it may be stated here that it is an admitted fact that the same was not completed by the stipulated date i.e. 08.11.2013. The opposite parties have candidly admitted this fact, in para 4 of their joint written version. Once, it is an admitted fact that construction of the unit, was not complete by the stipulated date i.e. 08.11.2013, therefore, at this stage, the question, which now arises, is, as to when construction of the unit, in question, was complete, or whether it is complete or not. The opposite parties vide letter dated 27.12.2014 Annexure C-5, made a demand in the sum of Rs.6,84,981/-, from the complainant, on account of alleged completion of plastering work. In this letter, it was nowhere mentioned, as to on which date or by which period, possession of the unit, would be handed over to the complainant. No doubt, while placing reliance on certain photographs-Annexure R-9 at pages 113 and 114, in respect of some units, the opposite parties took a specific stand in para 6 of their written version, to prove that construction of the unit was complete in all respects and possession thereof is ready to be handed over. It is very pertinent to mention here that perusal of the said photographs clearly goes to show that construction work is not complete at the site, and, on the other hand, it is still going on. It can easily be seen in these photographs that construction material like wooden planks, shuttering, PVC pipes, bricks, sand etc. are lying in front of the incomplete flats. Even skeleton of some flats, without any plaster work, can be seen in these photographs. Even in number of flats, doors, windows, glass etc. have not even fitted, what to speak of provision of basic amenities at the site. Thus, the photographs placed on record, by the opposite parties themselves, on 17.12.2015 alongwith written version, have gone in favour of the stand taken by the complainant, that even as on today, construction of the unit, is not complete and basic amenities are not in existence. Thus, from these photographs itself, placed by the opposite parties, on record, it has been proved that by 17.12.2015, construction of the unit was not complete; basic amenities are not in existence at the site and, as such, they (opposite parties) were not in a position to deliver possession of the unit, to the complainant, by the said date.
No doubt, for this delay of about two years, the opposite parties have taken a shelter under the document Annexure R-6, and by stating that it had occurred, on account of ban on mining of sand, by the Hon'ble High Court. This averment is without any cogent evidence. Perusal of Annexure R-6 reveals that, it is an order dated 25.05.2010, passed by Civil Judge (Jr.Divn.), Mohali, in a case titled as Baldev Singh Vs. Taneja Developers, relating to some other issue, which has no relation, with the stand taken by the opposite parties, with regard to delay in construction of the units, and this order was passed much before execution of the Buyer's Agreement dated 09.11.2011. As such, the stand taken by the opposite parties, to justify the delay, in construction of unit, thereof, being devoid of merit, is rejected.
It is not out of place to mention here that the act and conduct of the opposite parties, while dealing with the complainant, throughout remained contumacious. The opposite parties kept on making demands from the complainant, by giving wrong information/misleading him, regarding progress in construction work, just with a view to receive money from him. This fact is fortified from the letter dated 27.08.2014 Annexure C-4, wherein demand of Rs.6,45,798/- was raised by the opposite parties from the complainant, making him to believe that 100% construction work has been completed, yet, surprisingly, after about four months, another letter dated 27.12.2014 Annexure C-5 was issued by them (opposite parties), making a demand of Rs.6,84,981/-, towards completion of construction work to the extent of 90%. The fact, if in the month of August 2014, construction work of the unit was 100% complete, then how, thereafter, in the month of December 2014, still 10% of the construction work was pending, remains unexplained by the opposite parties. At the same time, as stated above, the photographs placed on record, by the opposite parties themselves, on 17.12.2015, clearly speak the status of construction, as has also been discussed above. Admittedly, by February 2014, against the total price of the unit i.e. Rs.40,36,300/- including EDC and PLC, the complainant had paid an amount of Rs.43,98,500/-It cannot be disputed that the complainant had already paid an excess amount of Rs.3,62,200/-, over and above the entire sale consideration of the unit, by February 2014. As far as the demands raised by the opposite parties, with regard to miscellaneous charges, under the heads, referred to above, are concerned, it may be stated here that since the opposite parties had already received Rs.43,98,500/- against the sale consideration of the unit i.e. Rs.40,36,300/-, it was required to adjust the excess amount received, under various heads, and make demand of remaining charges, when construction of the unit is complete and offer is made, in that regard, but they did not do so. There is nothing, on the record, to prove that even as on today, construction work of the unit is complete. Had the construction of unit, in question, and amenities promised, been complete, as on today, at the site, then certainly the opposite parties, being in possession of the best evidence, having engaged a number of engineers/architects, would have placed on record, their reports, during the pendency of this complaint, to prove that factum, but they failed to do so. Thus, it is held that construction of the unit, in question, was not complete at the site, as a result whereof, possession of the same, was not offered and delivered to the complainant, by the stipulated date, or even by the time, the complaint was filed or even as on today, as it was not ready, despite the fact that substantial amount of Rs.43,98,500/- had been received by the opposite parties, from him. By making a misleading statement, that possession of the unit, in question, will be delivered within 24 months, from the date of execution of the Agreement and by not abiding the commitment made, the opposite parties were not only deficient, in rendering service, but also indulged into unfair trade practice, on this count.
No doubt, a stand was also taken by the opposite parties that offer of possession of the unit was given to the complainant, in the first instance vide letter dated 27.08.2014, followed by letters dated 10.09.2015 Annexure R-7 and 19.11.2015 Annexure R-8, but he failed to make the outstanding payment. In the first instance, it may be stated here, that this Commission, after perusing the entire record, has already held above, that construction of the flats, is not yet complete, as such, the question of offer of possession of the unit, to the complainants, in the first instance, vide letter dated 27.08.2014, did not at all arise. Secondly, as regards sending of letters dated 10.09.2015 Annexure R-7 and 19.11.2015 Annexure R-8 to the complainant by the opposite parties, it may be stated here that they (opposite parties) failed to prove, as to by which mode, the said letters had been sent to him (complainant). On the other hand, the complainant, in his rejoinder has specifically denied receipt thereof. In these circumstances, no reliance can be placed on letters dated 10.09.2015 Annexure R-7 and 19.11.2015 Annexure R-8, to come to any conclusion. The stand taken by the opposite parties, in this regard, being devoid of merit, is rejected.
The next question, that falls for consideration, is, as to what amount is required to be paid by the complainant, towards remaining sale consideration, if any, and other charges, in respect of the said unit, As stated above, the basic sale price of the unit, was Rs.40,36,300/- i.e. Rs.33,50,000/- towards Basic Sale Price plus (+) External Development Charges (EDC) to the tune of Rs.1,16,800/-, and Preferential Location Charges (PLC), to the tune of Rs.5,69,500/-. It is also an admitted fact that against Rs.40,36,300/-, the complainant has paid an amount of Rs.43,98,500/- i.e. Rs.3,62,200/-, in excess, to the opposite parties. As per the summary dated 15.12.2015, Annexure R-2, at page 73 of the file, produced by the opposite parties, a sum of Rs.9,08,592/-, was demanded from the complainant, under various heads, as under:-
S.No Heads Amount to be paid (Rs.) Amount rcvd. and Adjusted Amount (Rs.)
1.
Basic sale price 33,50,000/-
31,57,201/ 1,92,799/-
2. PLC 5,69,500/-
5,69,500/-
-
3. EDC 1,16,800/-
1,16,800/-
-
4. Service Tax + Building Cess 1,54,613/-
1,47,762/-
6,851/-
5. Club charges 50,000/-
-
50,000/-
6. IFMS 50,000/-
-
50,000/-
7. Sewerage 20,000/-
-
20,000/-
8. Electricity 30,000/-
-
30,000/-
9. Water 30,000/-
-
30,000/-
10. Service tax on services 11,600/-
-
11,600/-
11. Delayed payment Interest 5,55,710/-
4,07,237/-
1,48,473/-
12. Inflations 2,32,674/-
-
2,32,674/-
13. Holding charges 1,29,600/-
-
1,29,600/-
14. Add. Maintenance charges 6,595/-
-
6,595/-
Total 53,07,092.00 43,98,500.00 9,08,592.00 The question, that falls for consideration, is, as to whether, out of the aforesaid amounts, the inflation charges, to the tune of Rs.2,32,674/-; holding charges to the tune of Rs.1,29,600/-; and remaining delayed payment interest, to the tune of Rs.1,48,473/-, claimed by the opposite parties, vide summary dated 15.12.2015, Annexure R-2, are legal or not. First coming to the inflation charges, it may be stated here that Clause 11 of the Buyer's 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's Agreement, that the opposite parties, were entitled to escalation in cost, during the course of two years period stipulated for completion of construction work, based on All India Wholesale Index for all commodities. Basing on this Clause, the opposite parties, submitted Annexure R-3 at page 80 i.e. Inflation Working Details for Avenue Unit, duly supported by the affidavit of Mr. Ranjit Singh, their General Manager. The Buyer's Agreement was executed on 09.11.2011 and possession of the unit, in question, was to be delivered, as per Clause 9 of the same (Buyer's Agreement), within 24 months i.e. on or before 08.11.2013. The parties were bound by the terms and conditions of the Buyer's Agreement, duly signed by them. Under these circumstances, the opposite parties, were entitled to escalation in cost of the unit, in question, if any took place, for the years from 2011-2012 and 2012-2013 i.e. from 09.11.2011 to 08.11.2012 and 09.11.2012 to 08.11.2013 (latter being the promised date of delivery of possession of unit). For the years 2011-2012, the inflation charges shown, in the document Annexure R-3 (colly.) are Rs.43,891.39Ps. and for 2012-2013, the same have been shown as Rs.62,239.54Ps. This escalation in cost was worked out, by the opposite parties, 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 the opposite parties, for the years 2011-2012 and 2012-2013. Under these circumstances, the complainant is liable to pay Rs.1,06,130.93Ps. (Rs.43,891.39Ps. plus (+) Rs.62,239.54Ps.), on account of escalation in cost, correctly calculated by the opposite parties.
So far as the escalation in cost, with regard to the years 2013-2014 and 2014-2015 is concerned, it may be stated here, that the opposite parties, are not entitled to the same, for the reasons, to be recorded hereinafter. It was for the opposite parties, to complete the construction, within 24 months, from the date of Buyer's Agreement i.e. by 08.11.2013. If there was any escalation in cost, during the period of 2 years, referred to above, the opposite parties were certainly entitled to the same, as per Clause 11 of the Buyer's Agreement. Thus, the opposite parties, are held entitled to Rs.1,06,130.93Ps. towards inflation charges, explained in the manner, referred to above. On the other hand, in case, the opposite parties, are also held entitled to escalation in cost, for the years 2013-2014 and 2014-2015 i.e. beyond 08.11.2013 onwards, then there will be no end to their nefarious activities. If the unscrupulous builders continue delaying construction of the units/flats/units, allotted to the consumers, for years together, then the latter cannot be blamed 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 the opposite parties that they were also entitled to escalation in cost, for the years 2013-2014 and 2014-2015, therefore, being devoid of merit, must fail, and the same stands rejected.
Now coming to the remaining delayed payment interest, to the tune of Rs.1,48,473/-, it may be stated here that, no doubt, the parties are bound by the terms and conditions of the Buyer's Agreement, yet, it is required to be seen, as to whether, the same (remaining delayed interest) levied, was actually due, to be paid, or not. For this, we need to refer to letter dated 27.08.2014 Annexure C-4, wherein the opposite parties had claimed delayed payment interest amount, only to the tune of Rs.1,846/-. However, it is also an admitted fact that by February 2014 i.e. five months before issuance of said letter dated 27.08.2014 Annexure C-4, the complainant had already paid an amount of Rs.43,98,500/- against Rs.40,36,300/- i.e. Rs.3,62,200/-, in excess of the sale consideration of unit. In these circumstances, when it is an admitted fact, that not only the entire sale consideration, but Rs.3,62,200/-, over and above the same, had been received by the opposite parties, from the complainant, by April 2014, and the remaining miscellaneous charges, referred to above, were required to be paid, at the time of delivery of actual physical possession of the unit, then how he (complainant) is still liable to pay delayed payment interest, to the tune of Rs.1,48,473/-,, especially, when the same was demanded only to the extent of Rs.1,846/-, in August 2014, also remained unexplained by the opposite parties. As such, the calculation and demand of remaining interest on delayed payments, to the tune of Rs.1,48,473/-, were wrongly and illegally made by the opposite parties, in Annexure R-2 (colly.). It is also very important to mention here that the opposite parties have already received a hefty amount of Rs.4,07,237/- towards delayed payment interest, from the complainant, despite the fact that, he had already paid an amount of Rs.43,98,500/- against Rs.40,36,300/- i.e. Rs.3,62,200/-, in excess of the sale consideration of unit, but still he is empty handed. In these circumstances, it is held that the complainant is only liable to pay Rs.1,846/-, towards remaining delayed payment interest, demand whereof had been made by the opposite parties, vide letter dated 27.08.2014 Annexure C-4.
As far as the holding charges, to the tune of Rs.1,29,600/-, levied by the opposite parties are concerned, it may be stated here, that since it has been held by this Commission, that they (opposite parties) have failed to prove that construction of the unit is complete, by the date of filing the complaint or even till date, despite the fact that the entire sale consideration has been received by them, except some charges, the question of levying the same (holding charges), did not at all arise. As such, it could safely be said that the holding charges, levied by the opposite parties, are illegal and the complainant is not liable to pay the same.
Now the stage is set to hold, as to what amount, is required to be paid by the complainant, to the opposite parties, before possession of the unit, is delivered to him. Admittedly, the opposite parties, have received an amount of Rs.43,98,500/- from the complainant, in respect of the unit, in question, against Rs.40,36,300/-. The table Annexure R-2 reproduced above, depicts that the opposite parties have adjusted the said amount of Rs.43,98,500/-, under various heads. Thus, even if we follow the adjustment of amount of Rs.43,98,500/-, made by the opposite parties, under various heads, as per Annexure R-2, then also, only the demand of Rs.1,92,799/- towards remaining basic sale price plus (+) Rs.6,851/- towards remaining service tax & building cess plus (+) Rs.50,000/- towards club charges plus (+) Rs.50,000/- towards IFMS plus (+) Rs.20,000/- towards sewerage charges plus (+) Rs.30,000/- towards electricity charges plus (+) Rs.30,000/- towards water plus (+) Rs.11,600/- towards service tax on services plus (+) Rs.1,846/-, towards remaining delayed payment interest (as explained above) plus (+) Rs.1,06,130.93Ps. (as calculated above, instead of Rs.2,32,674/-) towards inflation charges plus (+) Rs.6,595/- towards additional maintenance charges i.e. total Rs.5,05,821.93Ps., is legal and valid, as per the Agreement. These calculations were made by the opposite parties, from the books of account maintained by them, in the ordinary course of their business. Annexure R-2 (colly.) calculation chart is duly corroborated through the affidavit of Mr. Ranjit Singh, General Manager of the opposite parties. No contrary documentary evidence was produced by the complainant, to prove that the charges to the tune of Rs.5,05,821.93Ps., are incorrect. Thus, out of the demand of Rs.9,08,592/- raised by the opposite parties vide Annexure R-2 (colly.) only the demand of Rs.5,05,821.93Ps., in all, under various heads, as discussed hereinbefore, is legal.
It was also submitted by Counsel for the opposite parties, that the Agreement placed on record, by the complainant, was issued by an unauthorized person of the opposite parties. The Counsel further submitted that because of fraud committed by the employees of the Company with it, a criminal case against them was lodged and the construction work suffered. It may be stated here, that receipt of Rs.43,98,500/-, by the opposite parties has been admitted. Further, if there was any dispute between the opposite parties and their employees, and they (employees) allegedly may have played fraud with the Company, then the third parties i.e. the consumers including the complainant were not to suffer. The consumers, while dealing with the Company, did not know as to how internal affairs of the Company were being managed, and the consumer(s)/complainant could not be allowed to suffer for that. The opposite parties had their legal remedy, by initiating proceeding against their employees, under the criminal law. Thus, the submission of Counsel for the opposite parties, that the complaint be relegated to the Civil Court, being devoid of merit, must fail, and the same stands rejected.
Whether, the complainant is entitled to compensation, if so, at what rate, for non-delivery of physical possession of the unit, in question, by the opposite parties, by the promised date, is the next question, that requires determination. According to Clause 9 of the Buyer's Agreement, the opposite parties, were liable to pay a sum of Rs.7,000/- per month, as compensation/penalty, for the period of delay, beyond 24 months, from the date of execution of the same. Possession of the unit, in question, was not delivered to the complainant, by the stipulated date, or even by the time, the complaint was filed. As stated above, since the parties are bound by the terms and conditions of the Agreement/contract executed/ entered into between them, and the delayed payment interest in the sum of Rs.4,07,237/-, levied by the opposite parties, has also been paid by the complainant. When the opposite parties have charged interest in the sum of Rs.4,07,237/-, from the complainant on account of delayed remittance of some installments, there is no reason to deny compensation/ penalty @Rs.7,000/- per month for the period of delay in delivery of possession. It is held that the complainant is entitled to compensation/ penalty @ Rs.7,000/- per month, for the period of delay, from 08.11.2013 (promised date) onwards, as per Clause 9 of the Agreement, referred to above, on account of delay, in delivery of possession of the unit, in question.
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 him, is the next question, that requires determination. The complainant booked the residential unit, in question, with the hope to have a shelter over his head, but his hopes were dashed to the ground, when the opposite parties, failed to complete the construction and deliver possession of the same, despite the fact that substantial amount was paid by him. Till date, physical possession of the unit, in question, has not been delivered to the complainant, by the opposite parties. The complainant, thus, underwent a tremendous mental agony and physical harassment, on account of the acts of omission and commission of the opposite parties. In this view of the matter, the complainant, in our considered opinion, is entitled to compensation, for mental agony and physical harassment caused to him, at the hands of the opposite parties, to the tune of Rs.1.50 lacs, which could be said to be adequate and reasonable.
No doubt, an objection was also taken by the opposite parties, in their written version, that since the requisite Court fees, has not been paid by the complainant, the complaint is liable to be dismissed, on this ground alone. The objection taken by the opposite parties, in this regard, does not merit acceptance. It may be stated here, that according to Rule 9A (2) of the Consumer Protection Rules, 1987, if the total value of goods or services and the compensation claimed, is above fifty lacs and upto one crore, the amount of fee payable is Rs.4000/-. As per the aggregate value of relief claimed by the complainant, in the instant complaint, it fell above fifty lacs and upto one crore, meaning thereby that the complainant was required to pay a sum of Rs.4,000/-, as fees. It is evident, from the record, that a sum of Rs.4000/-, vide Demand Draft dated 05.11.2015, was deposited by the complainant. The correct fee was, thus, paid by the complainant. The objection taken by the opposite parties, in this regard, therefore, being devoid of merit, is rejected.
No other point, was urged, by the Counsel for the parties.
For the reasons recorded above, the complaint is partly accepted, with costs. The opposite parties are jointly and severally directed as under:-
To hand over legal physical possession of the unit, in question, complete in all respects, to the complainant, within three months, from the date of receipt of a certified copy of this order, on payment of Rs.5,05,821.93Ps., as indicated above, by him (complainant).
To execute the sale deed and get the same registered, in respect of the unit, in question, in favour of the complainant, on payment of stamp duty and registration charges by the latter (complainant), within a period of 1 (one) month, from the date of delivery of possession.
To pay penalty/compensation@ Rs.7,000/-per month, to the complainant, from 08.11.2013 onwards (the promised date of delivery of possession), till 31.01.2016 as per Clause 9 of the Agreement, alongwith simple interest @12% P.A. To pay compensation, in the sum of Rs.1.50 lacs, to the complainant, for mental agony and physical harassment, caused to him.
To pay cost of litigation, to the tune of Rs.50,000/-, to the complainant.
Compensation, granted to the complainant, alongwith simple interest @12% P.A., as mentioned in Clause (iii), which has fallen due upto 31.01.2016, shall be paid by the opposite parties, within 2 months, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry penal interest @15% P.A., instead of 12% P.A., from 08.11.2013, till realization.
Compensation accruing due @ Rs.7,000/-per month, w.e.f. 01.02.2016, onwards, shall be paid by the 10th of the following month, failing which, the same shall also carry simple interest @ 12% P.A., from the date of default, for the entire period of delay, till the payment is made.
Compensation granted, in favour of the complainant, on account of mental agony and physical harassment caused to him, to the tune of Rs.1.50 lacs, as mentioned in Clause (iv) above and litigation costs to the tune of Rs.50,000/- as mentioned in Clause (v) above, shall be paid, within a period of 2 months, from the date of receipt of a certified copy of the order, failing which they (opposite parties) shall pay simple interest @12% P.A., on the same, from the date of filing the complaint, till realization.
All other demand letters, issued by the opposite parties, being null and void, are set aside.
Certified Copies of this order be sent to the parties, free of charge.
The file be consigned to Record Room, after completion.
Pronounced.
29.01.2016 Sd/-
[JUSTICE JASBIR SINGH (RETD.)] PRESIDENT Sd/-
[DEV RAJ] MEMBER Rg