State Consumer Disputes Redressal Commission
Amrit Lal Mehta & Anr. vs Premium Acres Infratech Pvt. Ltd on 29 May, 2015
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Consumer Complaint : 68 of 2015 Date of Institution : 08.04.2015 Date of Decision : 29.05.2015 1] Amrit Lal Mehta S/o Sh. Sohan Lal Mehta, R/o House No.B-34-6849/7A, Street No.1, Naveen Nagar, Jassian Road, Haibowal, Ludhiana - 141001. 2] Amit Mehta S/o Sh. Amrit Lal Mehta, R/o House No.B-34-6849/7A, Street No.1, Naveen Nagar, Jassian Road, Haibowal, Ludhiana - 141001. ......Complainants. Versus 1] M/s Premium Acres Infratech Pvt. Ltd., SCO 56-57, 3rd Floor, Sector 17-D, Chandigarh through its Managing Director. 2] M/s Premium Acres Infratech Pvt. Ltd., Villa No.205, TDI City Premium Acre Court Yard, Sector 110-111, SAS Nagar (Mohali). 3] M/s Premium Acres Infratech Private Limited, (Regd. Office) 17/6, Anand Parbat, Industrial Area, Near Gali No.10, New Rohtak Road, New Delhi 110005. 4] Parminder Singh Sehgal (Director), Premium Acres Infratech Private Limited, R/o H.No.1227, Sector 42B, Chandigarh 160036. Second Address: Parminder Singh Sehgal (Director), Premium Acres Infratech Private Limited, R/o House No.61-62, Sector 70, Mohali. ....Opposite Parties. Complaint under Section 17 of the Consumer Protection Act, 1986. BEFORE: SH. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER.
Argued by: Mrs. Vertika H. Singh, Advocate for the complainants.
Sh. Parminder Singh, Advocate for the Opposite Parties.
PER DEV RAJ, MEMBER The facts, in brief, are that the complainants applied for booking of a flat in the Mega Housing Project of the Opposite Parties vide application dated 02.05.2010 and they were allotted flat No.17102 measuring 1200 Sq. feet super area vide allotment letter dated 1.7.2010 (Annexure C-1). It was further stated that Buyer Agreement dated 23.02.2011 (Annexure C-2) was executed and the complainants opted for the construction linked payment plan. It was further stated that as per Clause 9 of the Buyer Agreement dated 23.02.2011, possession of the flat, in question, was to be handed over within 24 months (18 months + 6 months grace period) from the date of execution of the same. It was further stated that possession of the flat was to be handed over on or before 22.02.2013. It was further stated that the basic sale price of the flat was Rs.21,95,000/- and the aggregate sale price of the flat as agreed in the Buyer Agreement was Rs.23,11,800/-, which included external development charges (EDC) of Rs.1,16,800/-.
2. It was further stated that the complainants made payment to the tune of Rs.25,31,190/- including service tax against the sale consideration of the said plot. It was further stated that the last demand raised by Opposite Party No.1 was Rs.2,28,448/- including Rs.1,30,000/- for IFMS, water, sewerage, electricity charges vide letter dated 25.11.2013 (Annexure C-3). It was further stated that the complainant No.2 visited the office of Opposite Party No.1 and apprised of having paid Rs.24,07,722/- till that date and accordingly, the Opposite Parties corrected their accounts and reduced the demand to Rs.1,23,468/- out of which 50% payment i.e. Rs.61,734/- was made by cheque on 18.12.2013 and the next 50% of the payment amounting to Rs.61,734/- was made on 17.1.2014. Payment receipt dated 5.6.2013 issued by Opposite Party No.1 and statement of account of HDFC Bank of complainant No.2 depicting payment of Rs.61,734/- alongiwth photocopy of cheque No.000031 dated 18.12.2013 were annexed as Annexure C-4 colly.
3. It was further stated that Opposite Party No.1 always issued demand letters with pre-charged interest for delayed payment and these demand letters were always received on the last date of due payment date. It was further stated that the Directors of the Company Sh. Sanjay Jain and Amit Jain had assured the complainants that as the interest on delayed payments had been levied just for formality sake, it would be positively waived of. It was further stated that after adjusting the entire interest of delayed payments, only Rs.1,23,468/- was pending against the complainants which was paid on 18.12.2013 and 17.1.2014.
4. It was further stated that complainant No.2 visited the office of Opposite Party No.1 and the project site several times to enquire regarding the status of the construction of the flat. It was further stated that in December 2013, when complainant No.2 visited the project site, it found that the flat was not ready for possession as only a small amount of construction work had taken place. It was further stated that complainant No.2 met Mr. Amit Jain and enquired regarding handing over of physical possession of the flat, who told that the same would be handed over at the earliest. It was further stated that after lapse of more than two years from the agreed date of handing over of possession, the same was not handed over to the complainants by the Opposite Parties. It was further stated that the complainants, despite there being delay in the construction work, had made the entire payment.
5. It was further stated that the complainants received legal notice dated 24.9.2014 (Annexure C-5) whereby an arbitrary demand of Rs.6,21,035/- was raised by the Opposite Parties. It was further stated that as per the detail attached with the said legal notice, an exorbitant amount of Rs.90,333/- was shown to be pending against the basic sale price whereas the complainants had already made the entire payment as per demand raised by the Opposite Parties. It was further stated that as there was no delay in making the payment, hence, Rs.2,19,948/- as delayed interest charges had been arbitrarily charged and adjusted from the due payment made by the complainants. It was further stated that Rs.2,09,596/- had been illegally levied as inflation charges and Rs.50,000/- as club charges. It was further stated that moreover even the Buyer Agreement dated 23.2.2011 did not find mention of any kind of club charges. It was further stated that even the sewerage charges of Rs.20,000/-, electricity charges as Rs.30,000/- and water charges as Rs.30,000/- stood already paid by the complainants.
6. It was further stated that although EDC charges had been paid by the complainants but there was no development in the sector. It was further stated that there was no proper approach to the flat as there were no roads. It was further stated that no path had been developed and maintained and most importantly there were even no street lights. It was further stated that it was the responsibility of the Opposite Parties to ensure that the development in Sector 110-111, Mohali was appropriate and in accordance with the guidelines of GMADA. It was further stated that the complainants replied to the legal notice vide letter dated 21.2.2015 (Annexure C-6) and requested the Opposite Parties to waive of the exorbitant amount of Rs.6,21,035/- but till date, there was no response from the side of the Opposite Parties. It was further stated that the in their legal notice, the Opposite Partis said that unit was ready for possession and would be handed over within 90 days from the date the complainants made the due payment. It was further stated that the Opposite Parties were not handing over possession of the said flat without arbitrary payment due against the said flat.
7. It was further stated that the complainants paid all the installments due against the sale consideration of the flat despite the fact that the construction work was not complete and all the finishing work was yet to be completed. It was further stated that electrical wiring were not complete, plumbing fittings had not been fixed and paint work was yet to be done. It was further stated that complainant No.1 is the father of complainant No.2 and the complainants had bought the said flat for their own residential purpose as they are presently residing at Ludhiana. It was further stated that as per Clause 9 of the Buyer Agreement, the Opposite Parties were bound to pay Rs.7,000/- per month as delayed charges for the period of delay in handing over the possession to the complainants but they did not bother to make any kind of payment towards the period of delay.
8. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service and indulgence into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, for declaring the legal notice dated 24.09.2014 (Annexure C-5) issued by Opposite Party No.2 as null and void; directing them (Opposite Parties) to waive of the demand of Rs.6,21,035/- and give possession of Flat No.17102, complete in all respects; to pay Rs.7,000/- per month as delay charges for the period of delay in handing over possession since 22.03.2013 till the actual date of handing over of possession; interest @18% P.A. on the amount deposited by the complainants from the date of respective deposits till the date of actual physical possession; pay Rs.5 Lacs, as compensation, for mental agony and physical harassment; and cost of litigation, to the tune of Rs.50,000/-.
9. The Opposite Parties put in appearance on 12.05.2015. In their joint written version, Opposite Parties, took up certain preliminary objections to the effect that this Commission lacks the territorial jurisdiction on the ground that as per Clause 36 of the Agreement, the Courts situated at Delhi shall have exclusive jurisdiction to adjudicate any dispute arising out of the Agreement and that the present complaint involved forgery of documents specially Annexure C-3, suspected role in embezzlement, pricing and the dispute of area, which cannot be decided summarily and can only be dealt with by the Civil Court.
10. On merits, it was stated that the Buyer Agreement (Annexure C-2) although was not signed by the authorized person, but in order to maintain good relation, the Opposite Parties were ready to honor that agreement subject to payment of Rs.6,44,113/- as per Annexure R-2, which was updated up to 6.5.2015. It was admitted that the possession was to be handed over within a period of 24 months from the date of Buyer Agreement, subject to force majure conditions and other conditions. It was further stated that fraud was committed by the employees of the Opposite Parties, for which FIR (Annexure R-5) was lodged coupled with the stay order (Annexure R-7) passed by the Civil Court of Mohali and Hon'ble Punjab and Haryana High Court, were the reasons of delay for which, the Opposite Parties could not be burdened at all. It was admitted that the basic sale price of the flat, in question, was Rs.21,95,000/- and EDC to the tune of Rs.1,16,800/- were separate and nowhere the entire aggregate sale price of the flat was Rs.23,11,800/-. It was further stated that the Opposite Parties received the total payment to the tune of Rs.25,31,190/- only. It was denied that the entire payment against the sale consideration of the flat, in question, was paid by the complainants.
11. It was further stated that no receipt or letter was annexed suggesting that delay charges were waived off and moreover, no official in person was authorized to correct/waive off the interest part or any other payment under any head. It was denied that Sanjay Jain and Amit Jain, Directors of the Company had assured the complainants that interest on delayed payment was formality sake and it would be waived off. It was further stated that FIR No.64 dated 23.02.2015 (Annexure R-5) was registered against Sanjay Jain for defrauding the Opposite Parties. It was denied that complainant No.2 visited the office of Opposite Party No.2 and the project site several times. It was further stated that Amit Jain was basically nobody in the office of the Opposite Parties, whom complainant No.2 allegedly met. It was further stated that Amit Jain and Sanjay Jain were not impleaded in the array of the Opposite Parties. It was further stated that as per photographs (Annexure R-6), the area as well as the flat was completely constructed and could be handed over in a time period of 90 days if the complete legal payment as per Annexure R-2 was made by the complainants.
12. It was further stated that legal notice dated 24.09.2014 demanding Rs.6,21,035/- was legally issued as per the Rules and Regulations and terms and conditions of documents, Annexures C-1, C-2 and C-4. It was further stated that demand of Rs.90,333/- against the basic sale price, Rs.2,19,948/- as delayed interest; Rs.2,09,596/- as inflation charges as per Annexure R-3 and Rs.50,000/- as club charges as per allotment letter (Annexure C-1), was legal. It was further stated that photographs (Annexure R-6) further showed that proper development had taken place, street lights and roads were there, which could be seen and inspected any time. It was further stated that the request of the complainants for waiving of Rs.6,21,035/- could not be accepted under any condition, which had been further raised up to Rs.6,44,113/- vide Annexure R-2, which was updated up-to 6.5.2015. It was further stated that electrical wiring, plumbing work and pain work would be done when complete payment was made as per Annexure R-2. It was further stated that water and electrical meters would be installed only after receipt of complete payment. It was further stated that the Opposite Parties were not liable to make payment of Rs.7,000/- per month because the delay could not be attributed to the Opposite Parties. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
13. The complainants, in support of their case, submitted their joint affidavits, by way of evidence, alongwith which, a number of documents were attached.
14. The Opposite Parties, in support of their case, submitted the affidavit of Sh. Ranjit Singh, their General Manager (Legal & Administration), by way of evidence, alongwith which, a number of documents were attached.
15. The complainants filed replication wherein, they reiterated all the averments, contained in the complaint and repudiated the same, contained in the written version of the Opposite Parties.
16. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
17. It is evident from the terms of the Buyer Agreement that the complainants opted for construction linked installment payment plan (page 41). The total basic sale price of the flat, in question, was Rs.21,95,000/- plus Rs.1,16,800/- on account of external development charges and preferential location charges were Nil. The construction linked installment payment plan, opted by the complainants, is extracted hereunder:-
Payment Milestones Basis of Calculation Amount in INR BSP (Basic Sales Price) 2195000.00 EDC 116800.00 PLC 0.00 At the time of registration 20% of BSP 439000.00 Within three months of allotment 10% of BSP 219500.00 Within three months of first installment 10% of BSP 219500.00 On commencement of demarcation of plot 10% of BSP 219500.00 On casting of ground floor roof 7.5% of BSP 164625.00 On casting of first floor roof 7.5% of BSP 164625.00 On start of brick work 7.5% of BSP + 25% of EDC 193825.00 On start of internal plastering 7.5% of BSP + 25% of EDC + 50% of PLC 193825.00 On start of flooring 5% of BSP + 25% of EDC + 50% of PLC 138950.00 On start of internal electrification 5% of BSP + 25% of EDC - 50% of Discount 138950.00 On start of internal plumbing 5% of BSP - 50% of Discount 109750.00 On final notice of possession 5% of BSP 109750.00 Total 2311800.00
18. In the calculation summary (Page 102-103) and legal notice (Annexure C-5), the Opposite Parties have admitted receipt of Rs.25,31,190/-.
19. The first question, which falls for consideration, is, as to whether existence of Clause 36 in the Buyers Agreement, bars the territorial jurisdiction of this Commission, to entertain and try the complaint. Section 17(2) of the Act, being relevant, is extracted hereunder:-
(2) A complaint shall be instituted in a State Commission within the limits of whose jurisdiction,--
(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain; or
(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided that in such case either the permission of the State Commission is given or the opposite parties who do not reside or carry on business or have a branch office or personally work for gain, as the case may be, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.
20. No doubt, the Counsel for the Opposite Parties submitted that since the parties as per Clause 36 of the Buyer Agreement (Annexure C-2), agreed that the Courts at Delhi alone, would have jurisdiction, for adjudication of all matters arising out or in connection with the same (Agreement), this Commission has got no territorial jurisdiction, to entertain and decide the complaint. The submission of the Counsel for the Opposite Parties, 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. Clause 36 of the Buyer Agreement, Annexure C-2, 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 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 material to Section 17 of the Act and the provisions of Sections 15 to 20 of the Civil Procedure Code, regarding the place of jurisdiction. In the instant case, the Buyer Agreement (Annexure C-2) was executed between the complainants and the Opposite Parties on 23.02.2011 at Chandigarh. Letters dated 25.11.2013 and 06.05.2013, Annexure C-3 and C-4, written to complainant No.1, were also issued by the Chandigarh Office of the Opposite Parties. As such, a part of cause of action, accrued to the complainants, 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 the Opposite Parties, in this regard, therefore, being devoid of merit, fail and the same stands rejected.
21. The next question, which falls for consideration, is, as to whether this Commission can adjudicate upon the present complaint, when there are allegations of fraud and forgery leveled by the Opposite Parties, against its Director and the complainants. Bare perusal of the allotment letter dated 01.07.2010 (Annexure C-1) reveals that the same bears the signatures of Sh. Amit Jain, as authorized signatory of the Opposite Parties. When the Opposite Parties admitted issuance of allotment letter, they cannot be heard to say that letter dated 25.11.2013 was forged and fabricated as Sh. Amit Jain was nobody in the office of the Opposite Parties. When the allotment letter is duly signed by an authorized signatory of the Opposite Parties, they (Opposite Parties) cannot resile from the contents of the same as also that of Buyer Agreement and letter dated 25.11.2013 (Annexure C-3). It is not the case of the Opposite Parties that they did not receive the amount deposited by the complainants. In the legal notice (Annexure C-5) sent to the complainants and Annexure R-2 (Page 102-103), they have clearly admitted receipt of Rs.25,31,190/-. If the person who was authorized to sign the allotment letter committed some fraud with the Opposite Parties, the liability for the same cannot be fastened upon the complainants. The Opposite Parties can proceed against him, as per the provisions of law but the rights of the complainants, being third parties, due to the acts of the Director of the Company, could not be affected. This was an internal affair of the Company vis-à-vis its Director who allegedly committed fraud with it (Company). Thus, this objection of the Opposite Parties, being devoid of merit also stands rejected.
22. The next question, which falls for consideration, is, as to whether there was any deficiency attributable to the Opposite Parties, in handing over possession of the unit, in question, to the complainants. Clause 9 of the Buyer Agreement executed on 23.02.2011 (Annexure C-2), being relevant is extracted hereunder:-
"9. That the possession of the said premises is likely to be delivered by the company to the Floor allottee within a period of 24 months (18 months plus 6 months grace) from the date of this agreement subject to force majeure circumstances, & on receipt of all payments punctually as per agreed terms and on receipt of complete payment of the basic sale price and other charges due and payable up to the date of possession according to the payment plan applicable to him. The Company on completion of the construction shall issue final call notice to the Floor Allottee who shall within 30 days thereof, remit all dues and take possession of the Floor. In the event of his failure to take possession for any reason whatsoever, he shall be deemed to have taken possession of the allotted unit for purposes of payment of maintenance charges or any other levies on account of the allotted unit, but the actual physical possession shall be given on payment of all outstanding payments as demanded by the Company. The Allottee would be liable to pay holding charges @5/- per sq. ft. per month if he fails to take possession within 30 days from the date of offer of possession. That if the construction is delayed due to normal course, other than conditions set out in point 10, then the company shall pay Rs.7,000/- per month as delay charges for the period of delay."
23. The Buyer Agreement was executed on 23.02.2011 and computing 24 months period therefrom, the Opposite Parties were required to hand over possession by 22.02.2013. It is, no doubt, true that vide letter dated 25.11.2013 (Annexure C-3), Opposite Party No.1 informed complainant No.1, that the unit had reached the stage of completion with plaster work and all internal electrical and plumbing work having been completed and the unit shall be ready for possession subject to payment of Rs.2,28,448/- on account of 100% of completion alongwith late payment interest charges and Rs.1,30,000/- as IFMS, water, sewerage and electricity charges. It was further informed that the Opposite Parties wished to complete the unit and handover the same in impeccable condition. The Opposite Parties also informed that they had to start fixing of meters for electricity, water, sewerage supply by seeking connections in the name of the complainants and thereafter, only, they would start the final painting, tile work, fixation of glass, CP fittings and switches etc. Thus, while the Opposite Parties on account of their failure to adhere to the time schedule for delivering possession by 22.02.2013 were not only deficient in rendering service, but also indulged into unfair trade practice. Thus, under these circumstances, it could very well be said that by 25.11.2013, possession of the unit was not ready to be delivered to the complainants. On the other hand, the demand raised vide legal notice dated 24.09.2014 (Annexure C-5), was challenged by the complainants, being illegal vide Annexure C-6. As stated above, there was no clear-cut offer of possession by the Opposite Parties. Thus, it is held that possession of the unit, in question, was not delivered to the complainants, by the stipulated date, or even by the time, the complaint was filed, despite the fact that more than 90% of the sale consideration, including miscellaneous charges, in respect thereof, as per the Buyer Agreement (Annexure C-2), had been paid. By making a misleading statmenet, that the possession of the unit shall be delivered within 24 months, from the date of execution of the Buyer Agreement (Annexure C-2), and by not abiding by the commitment made, the Opposite Parties, were not only deficient, in rendering service, but also indulged into unfair trade practice. The complainants are certainly entitled to physical possession of the unit, in question.
24. The next question, which falls for consideration, is, as to whether the Opposite Parties could increase the price of the flat on account of inflation. As per the summary dated 06.05.2015, at page 103 of the file, produced by the Opposite Parties, a sum of Rs.6,44,113/-, was demanded from the complainants, under various heads, as under:-
S.No. Heads Amount to be paid (Rs.) Amount rcvd. and Adjusted Amount (Rs.)
1.
Basic sale price 21,95,000/-
21,04,667/-
90,333/-
2. EDC 1,16,800/-
1,16,800/-
-
3. Service Tax + Building Cess 89,776/-
89,776/-
-
4. Club charges 50,000/-
-
50,000/-
5. IFMS 50,000/-
-
50,000/-
6. Sewerage 20,000/-
-
20,000/-
7. Electricity 30,000/-
-
30,000/-
8. Water 30,000/-
-
30,000/-
9. Service tax on services 9,888/-
-
9,888/-
10. Delayed payment Interest 2,19,948/-
2,19,948/-
-
11. Inflation charges 2,32,674/-
-
2,32,674/-
12. Holding charges 1,29,600/-
-
1,29,600/-
12. Add. Maintenance charges 1,618/-
-
1,618/-
Total 31,75,303/-
Rs.25,31,190/-
Rs.6,44,113/-
There is a specific clause relating to this aspect (inflation) in the Buyer Agreement. Clause 11 of the Buyer Agreement dated 23.02.2011 (Annexure C-2), being relevant is extracted hereunder:-
"11. The price for the unit stipulated herein is based on wholesale Index for all commodities as ruling in. However, during the progress of the work, escalation in cost takes place which will be based on all India wholesale index for all commodities the effect of such increase as assessed by the Company and intimated to the intending (allottees) shall be payable by him/her over and above the price. The decision of the Company in this respect shall be final and binding on the intending Allottee(s). The increased incidence may be charged and recovered by the Company from the intending allottee(s) with anyone or more of the installments or separately."
It is evident from the afore-extracted Clause 11 of the Buyer Agreement dated 23.2.2011 (Annexure C-2), that the Opposite Parties, were entitled to escalation in cost during the course of construction work, based on All India Wholesale Index for all commodities. Basing on this Clause the Opposite Parties, submitted a chart (page 109-110) i.e. Inflation Working Details for Avenue Unit. The Buyer Agreement was executed on 23.2.2011 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 22.2.2013. The parties were bound by the terms and conditions of the Buyer Agreement duly signed by them. Once the Buyer Agreement was executed, the terms thereof shall prevail. 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. For the years 2011-2012, the inflation charges shown in the document at page 109 of the file 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 doubt, the Counsel for the complainants submitted that no data was produced by the Opposite Parties, to arrive at such escalation in cost. The submission of the Counsel for the complainants, in this regard, does not appear to be correct. Since it is evident from document, at page 109-110 of the file that the escalation in cost was arrived at, on the basis of Wholesale Price Index of the commodities/construction material, by the Opposite Parties, in case, the same was not correct, it was for the complainants, to rebut the same, by producing some cogent and convincing evidence, by they failed to do so. Under these circumstances, there is no reason, not to rely upon this chart, running into two pages i.e. 109-110, to come to the conclusion that escalation in cost arrived at, by the Opposite Parties, for the years 2011-2012 and 2012-2013 is correct. The formula applied by the Opposite Parties, is also correct. Under these circumstances, the complainants are 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.
25. 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 hereunder. As stated above, the Buyer Agreement Annexure C-2 was executed on 23.02.2011. As per Clause 9 of the Buyer Agreement dated 23.02.2011 Annexure C-2, the possession of unit was to be given within a period of 24 months (18 months plus 6 months grace period) from the date of execution of the same (Agreement dated 23.02.2011) i.e. on or before 22.02.2013. It was for the Opposite Parties, to complete the construction, within 24 months. If there was any escalation in cost, during the period of 2 years, referred to above, they were certainly entitled to the same (escalation in cost), as per Clause 11 of the Buyer Agreement dated 23.02.2011 Annexure C-2. Thus, the Opposite Parties, are held to be entitled to Rs.1,06,130.93Ps., on account of escalation in cost, for the period from 23.02.2011 to 22.02.2012 and 22.02.2012 to 22.02.2013 only. In case, the Opposite Parties, are held entitled to escalation in cost, for the years 2013-2014 and 2014-2015 i.e. beyond 22.02.2013 onwards, then there will be no end to their illegal activities. If the builders continue delaying construction of the units/flats/premises, allotted to the consumers, for years together, then the latter could not 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 the 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. Under these circumstances, beyond the promised date of delivery of unit, the Opposite Parties, are not entitled to escalation in cost. The submission of the Counsel for the Opposite Parties, that the Opposite Parties, 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.
26. Now coming to the demand raised in respect of payment of club membership charges, it may be stated here, that the demand with regard to club charges is legal and valid. Annexure C-1 is the allotment letter dated 01.07.2010 duly signed by the Authorized Signatory of the Opposite Parties and the complainants. The allotment letter Annexure C-1 comprises five pages (pages 23 to 27 of the file). It is evident from page 26 forming part of the allotment letter "IMP: 100% does not include IFMS, Club charges, Taxes, levies and Stamp duty. These shall be payable additionally at the time of possession". The complainants, thus, undertook to pay club charges, as is evident from the allotment letter. Thus, demand of Rs.50,000/- on account of club charges, is legal and valid. Since the Opposite Parties have not offered possession and interest on delayed payment by the complainants has been charged, they are not entitled to holding charges as per Clause 9 of the Buyer Agreement dated 23.02.2011 (Annexure C-2).
27. In view of the above, it is held that the total of other amounts, tabulated hereunder, due against the complainants, comes to Rs.3,87,969.93Ps:-
Sr. No. Description Amount (Rs.)
1.
Basic Sale Price 90,333.00
2. Club Charges 50,000.00
3. IFMS 50,000.00
4. Sewerage 20,000.00
5. Electricity charges 30,000.00
6. Water charges 30,000.00
7. Service Tax on services Rs.9,888.00
8. Inflation charges 1,06,130.93
9. Maintenance charges 1,618.00 Total:
3,87,969.93 The aforesaid charges could be claimed, as per the terms and conditions of the Agreement and the allotment letter. Since the complainants have failed to adduce any cogent evidence that they paid the aforesaid charges, they are liable to pay the same. Thus, only a sum of Rs.3,87,969.93Ps is payable by the complainants.
28. No doubt, the Counsel for the Opposite Parties, also submitted that various documents, including some statements of account, placed on record, by the complainants, were issued by Mr. Sanjay Jain, their Ex-Director, who was not authorized to do so. He further submitted that it was found that he (Sanjay Jain) had embezzled huge amount of the Company and had played fraud with it and, as such, a criminal case against him and the complainants was lodged. He further submitted that no reliance, therefore, on such forged and fabricated documents, could be placed. The submission of the Counsel for the Opposite Parties, in this regard, does not appear to be correct. If there was any dispute between the Opposite Parties and their Director Sanjay Jain and he allegedly played fraud with the Company as also allegedly embezzled its amount, then the third parties i.e. the consumers including the complainants were not to suffer. As stated above, 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 the Opposite Parties, 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. The Opposite Parties had their legal remedy of recovery of the amount allegedly embezzled by Sanjay Jain, Ex-Director, by filing a civil suit, and also by proceeding against him under the criminal law. Thus, the documents, referred to above, could not be said to be unreliable documents. The Opposite Parties, could not wriggle out the documents, referred to above, as the same contained admission against their interests. Thus, the submission of the Counsel for the Opposite Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.
29. Whether, the complainants are 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 Agreement 23.02.2011 (Annexure C-2), the Opposite Parties, were liable to pay a sum of Rs.7,000/- per month, as delay charges, 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 complainants, by the stipulated date, or even by the time, the complaint was filed. The complainants are, thus, entitled to delay charges/penalty @ Rs.7,000/- per month, for the period of delay, per month, from 22.02.2013 (promised date) onwards, on account of delay, in the delivery of possession of the unit, in question, as per Clause 9 of the Agreement, referred to above.
30. Whether, the complainants are entitled to compensation, under Section 14(1)(d) of the Act, on account of mental agony and physical harassment and injury caused to them, as also for deficiency in rendering service and indulgence into unfair trade practice, by not delivering physical possession of the unit, in question, to them, by the stipulated date on account of the partial illegal demand of the amount made by the Opposite Parties is the next question, that requires determination. The complainants booked the unit, in question, with the hope to have a shelter over their head, but their hopes were dashed to the ground, when the Opposite Parties, failed to complete the unit, in question, and deliver possession of the same, despite the fact that more than 95% of the sale consideration thereof was paid by them. Till date, physical possession of the unit, in question, has not been given to the complainants, by the Opposite Parties. No doubt, the complainants made a default in making payment of Rs.3,87,969.93Ps., as held above, yet the Opposite Parties have charged interest on the delayed payments, as shown in summary dated 06.05.2015, page 102-103. For the default of the complainants, they have been penalized, by charging interest on the delayed payments. They, thus, cannot be doubly penalized, by disallowing them compensation under Section 14 (1) (d) of the Act. The complainants, 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 complainants, in our considered opinion, are entitled to compensation, for deficiency in service, adoption of unfair trade practice, mental agony and physical harassment caused to them, at the hands of the Opposite Parties, to the tune of Rs.70,000/-, which could be said to be adequate and reasonable.
31. For the reasons recorded above, the complaint is partly accepted, with costs, against the Opposite Parties. The Opposite Parties are jointly and severally held liable and directed as under:_
(i) To hand over legal physical possession of unit No.17102, complete in all respects, to the complainants, within two months, from the date of receipt of a certified copy of this order, on payment of Rs.3,87,969.93Ps., as indicated above.
(ii) To execute the sale deed and get the same registered, in respect of unit No.17102 in favour of the complainants, 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.
(iii) To pay penalty/compensation @ Rs.7000/-, per month, to the complainants, from 22.02.2013 (the promised date of delivery of possession), onwards, as per Clause 9 of the Buyer Agreement dated 23.02.2011 (Annexure C-2).
(iv) To pay compensation, in the sum of Rs.70,000/-, to the complainants on account of deficiency in rendering service, adoption of unfair trade practice by the Opposite Parties, mental agony and physical harassment, caused to them (complainants), at their hands.
(v) To pay cost of litigation, to the tune of Rs.20,000/-, to the complainants.
(vi) Compensation, granted to the complainants, as mentioned in Clause (iii), which has fallen due up-to 31.05.2015, 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 interest @9% P.A., from 22.02.2013, till realization.
(vii) Compensation accruing due @Rs.7000/- per month, w.e.f. 01.06.2015, onwards, shall be paid by the 10th of the following month, failing which, the same shall also carry interest @9 % P.A., from the date of default, till the delivery of possession.
(viii) Compensation granted, in favour of the complainants, on account of deficiency in rendering service, unfair trade practice, mental agony and physical harassment, to the tune of Rs.70,000/-, as mentioned in Clause (iv) 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 interest @9% P.A., on the same, from the date of filing the complaint, till realization, besides payment of litigation costs.
(ix) Demand of Rs.6,21,0351/-, made vide legal notice dated 24.09.2014 Annexure C-5, is partially held to be illegal, as indicated above, and, as such, is set aside to that extent.
32. Certified Copies of this order be sent to the parties, free of charge.
33. The file be consigned to Record Room, after completion.
Pronounced.
May 29, 2015.
Sd/-
[DEV RAJ] MEMBER Sd/-
[PADMA PANDEY] MEMBER Ad