State Consumer Disputes Redressal Commission
Nandita Rai vs M/S Premium Acres Infratech Pvt. Ltd. on 25 August, 2017
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH Consumer Complaint No. 68 of 2017 Date of Institution 20.01.2017 Date of Decision 25.08.2017 Nandita Rai W/o Sh.Raman Kumar, resident of B-302, Hind Apartment, Sector 5, Plot 12, Dwarka, New Delhi - 110075. .......Complainant V E R S U S 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) through authorized representative. 3] Parminder Singh Sehgal (Director), Premium Acres Infratech Private Limited, r/o H.No.61-62, Sector 70, Mohali. 4] Sanjay Jain (Director) Premium Acres Infratech Private Limited, r/o House No.2235, Sector 21, Chandigarh. ...... Opposite Parties Consumer Complaint No. 69 of 2017 Date of Institution 20.01.2017 Date of Decision 25.08.2017 Raman Kumar, S/o Sh. Lal Bihari Rai, resident of B-302, Hind Appts, Sector 5, Plot 12, Dwarka, New Delhi - 110075. .......Complainant V E R S U S 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) through authorized representative. 3] Parminder Singh Sehgal (Director), Premium Acres Infratech Private Limited, r/o H.No.61-62, Sector 70, Mohali. 4] Sanjay Jain (Director) Premium Acres Infratech Private Limited, r/o House No.2235, Sector 21, Chandigarh. ...... Opposite Parties BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT SH.DEV RAJ, MEMBER
SMT.PADMA PANDEY, MEMBER Argued by:
Mrs. Vertika H.Singh, Advocate for the complainant.
Sh.Parminder Singh, Advocate for Opposite Parties No.1 to 3.
Opposite Party No.4 exparte vide order dated 06.07.2017.
PER PADMA PANDEY, MEMBER Vide this common order, we propose to dispose of two complaints bearing No.68 of 2017 and 69 of 2017, referred to above. The facts involved in the two complaints and by and large, are the same and, therefore, these two complaints can be disposed of by passing a consolidated order.
2. To dictate order, facts are being taken from Consumer Complaint No.68 of 2017 titled as 'Nandita Rai Vs. M/s Premium Acres Infratech Pvt. Ltd.'
3. In brief, the facts of the case are that the Opposite Parties had launched the project of "TDI City" and the complainants were allured by the Opposite Parties, who depicted the benefits of the said project. On believing the glorified benefit of the project of the Opposite Parties, the complainants had applied for a Villa in their project vide application dated 06.03.2013 (Annexure C-1). Thereafter, villa No.71 having an approximately area of 2200 sq. ft. was allotted to the complainant vide allotment letter dated 06.03.2013. Buyer Agreement was executed between the parties on 20.05.2013 (Annexure C-2). According to Clause 9 of the Agreement, possession of the villa was to be delivered within a period of 24 months from the date of the Agreement i.e. latest by 19.05.2015. It was further stated that the agreegate sale price of the villa, as per the Agreement, was Rs.49,57,900/- including EDC. The complainant had opted for Construction Linked Payment Plan. It was further stated that the complainant had made the initial payment of Rs.21,50,000/- on 06.03.2013 at the time of allotment and therefore, she made further payment of Rs.10,00,000/- on 29.03.2013. The complainant had made the total payment of Rs.53,00,000/- in total on different dates through RTGS transfer. It was further stated that after receipt of the payment, the Opposite Parties never communicated to the complainant regarding the stage of construction work. The complainant enquired from the Opposite Parties telephonically on several occasions regarding the status of construction work of the said villa but they evaded the queries. It was further stated that when the complainant visited the site recently, they found only a basic structure of the concerned building was standing and no other work had been done in the said villa. It was further stated that the complainant even paid in advance the amount of money to be paid for the registration of sale deed but the complainant utterly disappointed by seeing that the construction work of the said villa had been completely shunned by the Opposite Parties without any rhyme and reason. Photographs of the concerned villa is Annexure C-4. It was further stated that there was no approach to the said villa, no park and amenities in the surrounding area. The Opposite Parties have abandoned the construction work of the said villa and there is a wild growth of jungle around the block, in which, the villa of the complainant exists. It was further stated that despite receipt of the huge payment, the Opposite Parties failed to show their bonafide and did not commence the construction work. It was further stated that the complainant also wrote letter and reminder dated 01.12.2015 & 14.01.2016 through which she raised her grievance regarding delay in construction and requested to intimate her the actual date and time for handing over of possession but Opposite Parties No.1 to 3 never bothered to file any reply (Annexures C-5 to C-7). It was further stated that the Opposite Parties were liable to pay compensation for delay in handing over of possession, as per Clause 9 of the Agreement but they failed to make any kind of payment to the complainant. It was further stated that the EDC charges have been paid by the complainant but there is no development, as there are no roads, no parks and street lights at the site. It was further stated that the Opposite Parties did not have the required sanctions/permissions for the development of the site and even they did not apply for the completion certificate of the said project. Due to the aforesaid act and conduct of the Opposite Parties, they were deficient, in rendering service, as also, indulged into unfair trade practice. When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (in short "Act" only), was filed.
4. Opposite Parties No.1 to 3, in their joint written statement, have stated that the complaint is not maintainable, as the replying Opposite Parties filed a criminal complaint against the complainant (Annexure R-7), which is pending before the SSP office, Chandigarh. It was further stated that the criminal complaint has been filed on the ground that there is a big difference in the basic sale price of the villa, in question, because the basic sale price, as per the price list (Annexure R-8) is Rs.73.50 lacs and not Rs.41 lacs, as allegedly shown by the complainant in Annexures C-1 & C-2 (allotment letter and Buyer Agreement) and further as per Annexure R-9, the interim audit report of the replying Opposite Parties clearly shows the name and amount difference of the BSP qua the complainant and the villa, in question. It was further stated that the criminal conspiracy committed by the complainants with the active connivance of Opposite Party No.4 and one Mr.Amit Jain, who has not been impleaded as a party in this case, shows that in order to make loss to the Company, the complainant allegedly purchased the villa, in question, at Rs.41 lacs, whereas, the actual BSP was Rs.73.50 lacs. It was further stated that under what circumstances, Opposite Party No.4 had signed the allotment letter and one Mr.Amit Jain, who was not authorized to sign any documents of the Company has entered into Agreement and signed on behalf of the Company and that too on a lesser BSP by Rs.32.50 lacs. It was further stated that the documents annexed by the complainant i.e Annexures C-1 and C-2 are forged and fabricated documents and could not be appreciated in the eyes of law, especially when FIR was registered against Mr.Sanjay Jain (Opposite Party No.4) and Mr.Amit Jain & others for their illegal conspiracy, and the fraud committed by them with the Company. It was further stated that the replying Opposite Parties received the total amount of Rs.53.50 lacs, which is not even 50% of the total final product of the villa, in question, and therefore still the balance amount of Rs.69,42,673/- is pending against the complainant, which has been shown in Summary Calculation updated upto 15.03.2017 (Annexure R-2) and if the complainant made the aforesaid payment, the possession would be handed over in another 60 days time. It was further stated that this Commission has no territorial jurisdiction to adjudicate the complaint, as Clause 36 of the Agreement clearly states that Courts at Delhi alone have the jurisdiction for adjudication of all the matters arising out in connection with the Agreement and even the concerned Chandigarh office is lying closed for the last so many years. It was further stated that 85% of the persons are fully satisfied and have paid their dues and have already been given the possession, whereas, only some of these persons are adamant of not making the payment. It was further stated that Opposite Party No.4 (Sanjay Jain) has not mentioned a single word before this Commission that under what circumstances he signed allotment letter (Annexure C-1) and why the basic sale price of the villa, in question, kept at Rs.41 lacs instead of Rs.73.50 lacs, the rate which was prevalent at the time of alleged allotment on 06.03.2013. It was further stated that the complainant has purchased the property not for residential purpose as they are living in Delhi and no evidence has been attached with this complaint, which suggests that the complainant alongwith his family wanted to live in this villa at any point of time, and, therefore the villa purchased by the complainant is only for speculation purposes and, as such, she cannot be termed as a Consumer under the Consumer Protection Act, 1986. It was further stated that the complaint is also not maintainable on the ground of non-joinder of necessary parties as the Buyer's Agreement was signed by Mr.Amit Jain, for which, he is a necessary party to be impleaded. It was admitted regarding purchase of the villa. It was further stated that the replying Opposite Parties entered into a Tripartite Agreement with TDI, where it has been stated that the replying Opposite Parties purchased the plots from TDI for the customer directly and replying Opposite Parties developed these plots on the basis of terms and conditions of the Agreement. It was further stated as per Clause 9 of the Agreement, possession is to be given within a period of 24 months i.e. by 20.05.2015 but is subject to other terms and conditions such as timely payment as per the schedule opted by the complainant. It was further stated that the construction work did not suffer any delay because of the fraud committed by the employees of the Company, which is mentioned in Annexures R-4 & R-5 and further stay orders passed from time to time by the Hon'ble High Court regarding the ban on sand mining and it was the duty of the complainant to make the payment in time as per the Agreement and Annexure R-2 but the complete payments were not made by the complainant and, therefore, possession could not be given. It was further stated that the complainant made the payment of Rs.53,50,000/- only, which includes the payment of Rs.10,00,000/- made on 29.03.2013 but it is to be seen that this is not the final cost of the product because final cost of the product includes all types of taxes such as service tax, cess, VAT, which are only illustrative and not exhaustive. It was further stated that as per the final product cost call notice, (Annexure R-2) to total cost comes out to the tune of Rs.1,22,92,673/- and still an amount to the tune of Rs.69,42,673/- is pending against the complainant. It was further stated that the replying Opposite Parties is not duty bound to inform the complainant regarding the progress of construction work, as per Clause 4(a) of the Agreement and rather the duty is cast upon the complainant to come present at the site, check the construction work and make the next round of payment, which the complainant failed to do so. The replying Opposite Parties also placed on record Annexure R-12 the photographs, which clearly shows the development of the surrounding areas. It was further stated that neither there was any deficiency, in rendering service, on the part of the replying Opposite Parties, nor they indulged into unfair trade practice.
5. Opposite Party No.4 in his short reply, admitted that the complainant deposited an amount of Rs.53,50,000/- with Premium Acres Infratech Pvt. Ltd. It was stated that Sh. Parminder Singh Sehgal & Smt. Parminder Kaur Sehgal, alleged Directors - Premium Acres Infratech Pvt. Ltd. have not only defrauded the replying Opposite Party but also committed criminal breach of trust and several other frauds with the Company and, as such, he lodged an FIR (Annexure OP-4/1) against them and also attached copy of CFSL report (Annexure OP-4/2). It was further stated that due to the disputes between the Directors of the Company, the complainant should not be made to suffer. It was further stated that another FIR dated 13.04.2016 was registered against the captioned persons for cheating, fraud and breach of trust done by Mr. Kapil Aggarwal, Chartered Accountant C/o B.Aggarwal and Co. in criminal conspiracy with Mr.Parminder Singh Sehgal and his wife Smt. Parminder Kaur Sehgal and other associates (Annexure OP-4/5). It was further stated that Mrs. & Mr. P.S.Sehgal have left no stone unturned to harass all the allottees of the project of the Company by fabricating and manipulating the entire account statements of the allottees just to extort maximum money from the allottees. It was further stated that the letters have been issued by the Company on the instructions of Mr.P.S.Sehgal and the replying Opposite Party has been fraudulently disassociated by Mr.P.S.Sehgal since June, 2014 and hence the replying Opposite Party has not been dealing with the affairs of the Company since June, 2014. However, the dispute regarding the ownership and Directorship of the Company is pending before the Hon'ble Company Law Board, New Delhi. Hence, the replying Opposite Party could not be held liable for any kind of grievance of the complainant arising after June, 2014. It was further stated that neither there was any deficiency, in rendering service, on the part of replying Opposite Party, nor he indulged into unfair trade practice and prayed for dismissal of the complaint qua Opposite Party No.4.
6. The complainant filed rejoinder to the written statement of Opposite Parties No.1 to 3, wherein she reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of Opposite Parties No.1 to 3.
7. The Parties led evidence, in support of their case.
8. We have heard the Counsel for the complainant & Counsel for Opposite Parties No.1 to 3 and have gone through the evidence and record of the case, carefully.
9. The first question, that falls for consideration, is as to whether, this Commission has got territorial Jurisdiction to entertain and decide the consumer complaint, or not. No doubt, Counsel for Opposite Parties No.1 to 3, submitted that since the parties as per Clause 36 of the Buyer Agreement, agreed that the Courts at Delhi alone, would have Jurisdiction, for adjudication of all matters arising out or in connection with the same (Agreement). He further submitted that the concerned office at Chandigarh was lying closed for the last so many years and, therefore, this Commission has got no territorial Jurisdiction, to entertain and decide the complaint. The submission of Counsel for Opposite Parties No.1 to 3, in this regard, being devoid of merit, is liable to be rejected, for the reasons, to be recorded hereinafter. In the first instance, it may be stated here, that the Consumer Foras' are not the Courts. It is pertinent to note that Buyer Agreement which was executed between the parties, at Chandigarh, on 20.05.2013 vide Clause 36 of the Agreement, only confers Jurisdiction on the Courts at Delhi. Under these circumstances, no help can be drawn, from this Clause for coming to the conclusion, that this Commission at Chandigarh, has no territorial Jurisdiction, to entertain and decide the instant complaint. In Associated Road Carriers Ltd. Vs. Kamlender Kashyap and Ors., I (2008) CPJ 404 (NC), it was held by the National Commission, that a clause of Jurisdiction, by way of an Agreement, between the parties, could not be made applicable, to the Consumer Complaints, filed before the Consumer Foras, as the Foras are not the Courts. It was further held, in the said case, that there is a difference between Section 11 of the Act, which is a para materia to Section 17 of the Act and the provisions of Sections 15 to 20 of the Civil Procedure Code, regarding the place of Jurisdiction. Now the plea of Counsel for Opposite Parties No.1 to 3 that the Company's office at Chandigarh has been closed and this Commission has no jurisdiction, has also no value, at all because at the time of booking of the unit by the complainant, the office of the Company was functioning at Chandigarh. It means that the Company kept the complainant in dark since no such communication was ever sent to the complainants regarding closing down of the Chandigarh office. Moreover, the allotment letter (Annexure C-1) annexed by the complainant, issued by the Company from their Chandigarh office clearly shows the Chandigarh address of the Company on the aforesaid document. As such, a part of cause of action, accrued to the complainant, at Chandigarh. Accordingly, this Commission at Chandigarh, in view of the provisions of Section 17 of the Act, has territorial Jurisdiction to entertain and decide the complaint. The submission of the Counsel for Opposite Parties No.1 to 3, in this regard, therefore, being devoid of merit, must fail and the same stands rejected.
10. The objection taken by Opposite Parties No. 1 to 3, to the effect that the complainant has not purchased the property for residential purpose but for selling/investment for reaping extra profits and, as such, she cannot be termed as "Consumer" under the Consumer Protection Act, 1986. It may be stated here that there is nothing, on the record, that the complainant is the property dealer, and deals in the sale and purchase of property, on regular basis, and as such, the villa, in question, was purchased by her, by way of investment, with a view to resell the same, as and when, there was escalation in the prices thereof. Thus, in the absence of any cogent evidence, in support of the objection raised by Opposite Parties No.1 to 3, mere bald assertion i.e. simply saying that the complainant being investor, did not fall within the definition of a consumer, cannot be taken into consideration. The complainant in para No.5 of the complaint clearly stated that the complainant had bought the said property for her parents who are old and wanted to reside near to their daughter. Moreover, in her rejoinder, the complainant clearly stated that the complainant had bought the said unit to shift in Mohali near their near and dear ones. So, it is clear that the said villa purchased by the complainant for residential purposes. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta, 2016 (2) CPJ 316. The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. The complainant, thus, falls within the definition of a 'consumer', as defined under Section 2(1)(d) of the Act. Such an objection, taken by Opposite Parties No.1 to 3, therefore, being devoid of merit, is rejected.
11. The next question that falls for consideration is whether the complaint is maintainable on the ground of non-joinder of necessary party i.e. Mr.Amit Jain, who has signed the Buyer's Agreement. It may be stated here that the complainant booked the villa/unit of M/s Premium Acres Infratech Pvt. Ltd. and paid the huge amount in respect of the unit and she did not know who Mr. Amit Jain was. If the aforesaid official/any other official received the amount of the unit from the complainant and signed the Buyer Agreement, it was done by him being an employee, who could receive the said amount on behalf of the Company. In the present case, we do not feel that Mr.Amit Jain is the necessary party. So, the objection taken by Opposite Parties No.1 to 3 has no force, at all and the same stands rejected.
12. The next question that falls for consideration is whether Annexures C-1 & C-2 i.e. allotment letter and Buyer Agreement attached by the complainant alongwith her complaint are forged and fabricated documents. The Counsel for Opposite Parties No.1 to 3 submitted that the documents Annexures C-1 & C-2 are forged and fabricated documents because these documents are created with the active connivance of the complainant with Mr.Sanjay Jain, Mr.Amit Jain and others for causing huge loss to the Company. It was next submitted by the Counsel for Opposite Parties No.1 to 3, that criminal complaint was also filed by the Company against the complainant. It was further submitted that there is a big difference in the basic sale price of the villa, in question, because the basic sale price as per the price list is Rs.73.50 lacs and not Rs.41 lacs, as allegedly shown in the documents Annxures C-1 & C-2. He further submitted that Mr.Sanjay Jain (Opposite Party No.4) and Mr. Amit Jain, embezzled its (Company) huge amount and also played fraud with it (Company). He further admitted regarding the receipt of the amount of Rs.53.50 lacs for the villa, in question. He further argued that Opposite Party No.4 had signed the allotment letter and one Mr.Amit Jain, who was not even authorized to sign any document of the Company had entered into a Buyer Agreement and signed on behalf of the Company, that too on a lesser basic sale price. He further submitted that an FIR registered against Mr. Sanjay Jain, Mr. Amit Jain and others for their illegal and conspiracy regarding the fraud committed by them with the Company. It is, no doubt, true that Mr.Sanjay Jain and Mr.Amit Jain were the officials of the Company. On the other hand, Counsel for the complainant submitted that the complainant was being victimized due to the internal disputes amongst the Directors of the Company. She further submitted that the Company had allotted the said villa to the complainant for a total sale consideration of Rs.49,57,900/- including EDC & PLC, as the same price was mentioned in the allotment letter and Buyer Agreement. She further submitted that once the sale price of the said villa, in question, has already been settled between the parties, the Company cannot again refixed the sale price and demanded huge amount of money from the complainant. She further submitted that the complainant has accepted the price offered by the Company. She further submitted that the Company never bothered to write even a single letter/mail to the complainant regarding any kind of discrepancy in the sale price. It is, no doubt, true that the complainant booked the villa, in question. A bare perusal of the allotment letter (Annexure C-1) clearly reveals that villa No.71 (Silver) was allotted in Sector 110, Mohali to the complainant. It is also the admitted fact that the complainant opted for Construction Linked Installment Plan, in which, Basic Sale Price of the villa is clearly mentioned as Rs.41,00,000/- (at page No.21 of the file) and the said allotment letter was duly signed by the Authorised Signatory of the Company. Thereafter, Buyer Agreement was executed between the parties at Chandigarh on 20.05.2013. A bare perusal of Construction Linked Installment Plan, mentioned in the Buyer Agreement, clearly reveals that Basic Sale Price is mentioned as Rs.41,00,000/- and the said Agreement was duly stamped and signed by the responsible officer of the Company on each and every page of the Agreement. It is not understandable that when the Company admitted regarding the booking of the villa, in question and receipt of the amount of Rs.53.50 lacs from the complainant, then how could they deny the issuance of allotment letter and execution of Buyer Agreement ? It is admitted that the aforesaid disputed documents were signed by Mr.Sanjay Jain and Mr.Amit Jain because both the officials were on reputed post of the Company. It is pertinent to note that the said villa was purchased by the complainant from the Company and not from any individual official of the Company. After receipt of the huge amount from the complainant, the complainant cannot be questioned regarding the authenticity of the documents or the sanctity of the sale price agreed between the parties. The complainant had bought the unit at a price offered by the Company itself. Mr.Amit Jain was one of the Directors of the Company, who had signed the Buyer Agreement on behalf of the Company. The allotment letter was issued by the Company on the letter head of the Company and bears the signatures of the former Director of the Company. It may be stated here that if Mr.Sanjay Jain and Mr.Amit Jain, appointed by the Company, played fraud with the Company then what was the fault of the complainant ? The said documents i.e. Annexure C-1 & C-2 issued by the aforesaid officials on behalf of the Company and not on his/their personal capacity. This was an internal affair of the Company vis-à-vis its Director who allegedly committed fraud with it (Company). If the aforesaid officials allegedly embezzled the huge amounts of the Company, and defrauded it, then it (Company) can proceed against them, for the recovery of amount, by filing a civil suit, and also under the criminal law by lodging an FIR. For their alleged acts of omission and commission, the third parties, cannot suffer. We are of the view that once the sale price of the said villa, in question, has already been settled between the parties, the Company cannot again refix the sale price and demanded such huge amount from the complainant. So, the objection taken by Counsel for Opposite Parties No.1 to 3 regarding the authenticity of both the documents (Annexures C-1 & C-2) has no force, at all, and the same stands rejected.
13. To the objection whether Opposite Party No.4 was authorized to sell the unit of the Company and determine the price of the unit to be sold, the same has already decided by this Commission vide order dated 10.01.2017 passed in the case titled as Rohit Wadhawan & Anr. Vs. M/s Premium Acres Infratech Pvt. Ltd., which reads thus :-
"13. To the objection whether Opposite Party No.5 was authorized to sell the unit of the Company and determine the price of the unit to be sold. Opposite Party No.5 has also moved an application for placing on record additional evidence i.e. Annexures OP-5/6 to OP-5/7 alongwith his affidavit. Opposite Party No.5 has stated in his affidavit that he is the owner/director of the Company M/s Premium Acres Infratech Pvt. Ltd. and Opposite Party No.4 had transferred 5000 shares vide share certificate dated 08.01.2010 to Opposite Party No.5. Copy of the share certificate is Annexure OP-5/6 and the income tax return filed by Opposite Party No.5 on behalf of the Company is Annexure OP-5/7. Mr.Sanjay Jain further stated that he being the Director of the Company was absolutely authorized to sell the unit of the Company and determine the price of the unit to be sold. He admitted that villa No.99 was sold to the complainants at a price of Rs.44,50,400/- including EDC. He further stated that Mr.Amit Jain was the duly authorized signatory on behalf of the Company for executing the Buyer Agreement as well as for processing all the necessary documentation for the sale of the unit.
On the other hand, Counsel for Opposite Parties No.1 to 4 stated that the present application filed by Opposite Party No.5 is an afterthought and his sole purpose is to cause loss to Opposite Parties No.1 to 4. He further submitted the said application is just to cover up lacuna, which shows that there is connivance between the complainants and Opposite Party No.5, so all the annexures are not a proper and relevant documents.
After going through the documents annexed by Opposite Party No.5 alongwith his application, it is clearly proved that the Company had transferred 5000 shares vide share certificate dated 08.05.2010 to Opposite Party No.5 and the income tax return was filed by Opposite Party No.5 on behalf of Opposite Parties No.1 to 4 for the assessment year 2012-13, which clearly proves that Sh.Sanjay Jain, Opposite Party No.5 was absolutely authorized to sell the said unit of the Company and determine the price of the unit to be sold. So, we are of the view that the documents, annexed by Opposite Party No.5, as additional evidence are necessary for the just decision of the case and the same are taken on record.
The application stands disposed of accordingly.
So, it is clearly proved that the objection taken by Counsel for Opposite Parties No.1 to 4 that Opposite Party No.5 was not authorized to sell the unit of the Company and determine the price of the unit to be sold the complainants, has no force, at all and the same stands rejected."
Even Opposite Party No.4 has clearly stated in his short reply that that he is the director of the Company M/s Premium Acres Infratech Pvt. Ltd. and Opposite Party No.2 had transferred 5000 shares vide share certificate dated 08.01.2010 to Opposite Party No.4. Copy of the share certificate is Annexure OP-4/6 and the income tax return filed by Opposite Party No.4 on behalf of the Company is Annexure OP-4/7.
After going through the documents annexed by Opposite Party No.4, it is clearly proved that the Company had transferred 5000 shares vide share certificate aforesaid to Opposite Party No.4 and the income tax return was filed by Opposite Party No.4 on behalf of Opposite Parties No.1 to 3 for the assessment year 2012-13, which clearly proves that Sh.Sanjay Jain, Opposite Party No.4 was absolutely authorized to sell the said unit of the Company and determine the price of the unit to be sold. So, it is clearly proved that the objection taken by Counsel for Opposite Parties No.1 to 3 that Opposite Party No.4 was not authorized to sell the unit of the Company and determine the price of the unit to be sold the complainant, has no force, at all and the same stands rejected.
14. As regards inflation charges of Rs.9,93,772/-, as per Annexure R-2, is concerned, it may be stated here that Clause 11 of the Buyer Agreement, reads as under:-
"The price for the unit stipulated herein is based on wholesale index for all commodities as ruling in. However, during the progress of the work, escalation in cost takes place which will be based on all India wholesale Index for all commodities the effect of such increase as assessed by the Company and intimated to the intending (allottees) shall be payable by him/her over and above the price. The decision of the Company in this respect shall be final and binding on the intending Allottees(s). The increased incidence may be charged and recovered by the Company from the intending allottee(s) with anyone or more of the installments or separately".
It is evident, from afore-extracted Clause 11 of the Buyer Agreement, that Opposite Parties No.1 to 3, were entitled to escalation in cost, during the course of construction work, based on All India Wholesale Index for all commodities. Based on this Clause, Opposite Parties No.1 to 3, submitted Annexure R-3 at page 83 i.e. With all Commodities. The Buyer Agreement was executed between the parties on 20.05.2013 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 19.05.2015. The parties were bound by the terms and conditions of the Agreement, duly signed by them. Under these circumstances, Opposite Parties No.1 to 3, were entitled to escalation in cost of the unit, in question, if any, for the years from 2012-2013, 2013-2014 and 2014-2015. For the years 2012-2013, the inflation charges shown, in the document Annexure R-3 are Rs.2,94,944.10Ps, for 2013-2014, the same have been shown as Rs.2,63,968/- and for 2014-2015, the same have been shown as Rs.92,323.18Ps. This escalation in cost was worked out, by Opposite Parties No.1 to 3, on the basis of Wholesale Price Index of the commodities, for these years. No cogent and reliable evidence was produced by the complainant, to rebut the calculation of inflation charges made by Opposite Parties No.1 to 3, for the years 2012-2013, 2013-2014 and 2014-2015. Under these circumstances, the complainants are liable to pay Rs.6,51,235.28Ps (say Rs.6,51,235/-). (Rs.2,94,944.10Ps. plus (+)Rs.2,63,968/- + Rs.92,323.18Ps ), on account of escalation in cost, as calculated by Opposite Parties No.1 to 3.
15. So far as the escalation in cost, with regard to the remaining years is concerned, Opposite Parties No.1 to 3, are not entitled to the same. In case, for the years aforesaid Opposite Parties No.1 to 3, are also held entitled to escalation in cost, then there will be no end to their nefarious activities. If the unscrupulous builders continue delaying construction of the units/flats/villas, allotted to the consumers, for years together, then the latter cannot be penalized for the same. If the builders are given liberty to continue construction of the units, beyond the promised date of delivery of possession, as per the Agreement, without existence of any circumstances, beyond their control, then they may delay the construction, for years together, and the consumers will suffer at their hands, on account of making payment of escalation in cost. It would thus amount to indulgence into unfair trade practice. The submission of Opposite Parties No.1 to 3 in this regard, being devoid of merit, must fail, and the same stands rejected.
16. As far as the levying of delayed interest payment of Rs.18,50,643/- is concerned, it may be stated here that the complainant was not informed about the stage of construction of the unit, in question because it is not practically possible for the complainant to visit again and again at the site and check the status of construction and make the payment. Even Opposite Parties No.1 to 3 never bothered to even reply to the letter dated 01.12.2015 and 14.01.2016 written by the complainant to them (Annexures C-5 & C-6). So, we are of the view that since the complainant was not informed regarding the stages of construction at the site and the construction at the site was not going on as per the schedule, therefore, no delayed payment interest is leviable.
17. The next question, that falls for consideration, is as to what amount is required to be paid by the complainant. It is, no doubt, true that the complainant opted Construction Linked Installment Plan and as per the payment plan, the total consideration of the unit, in question, was Rs.49,57,900/-, which includes EDC & PLC. It is not disputed that the complainant paid the total amount of Rs.53.50 lacs for the unit, in question. On going through the demand raised by Opposite Parties No.1 to 3 (Annexure R-2), we are of the considered opinion that the following amounts are liable to be paid by the complainant at the time of taking over the possession :-
S.No Heads Amount (Rs.)
1.
Basic Sale Price + EDC + PLC Noting remains to be paid, since the complainant has paid Rs.53,00,000/- which includes BSP + EDC + PLC + Service Tax + Building Cess
2. Service Tax + Building Cess (Balance) 15,031/-
3. Club charges 50,000/-
4. IFMS 1,25,000/-
5. Sewerage 30,000/-
6. Electricity 50,000/-
7. Water 40,000/-
8. Service tax on services 18,000/-
9. Inflations 6,51,235/-
10. Add. Maintenance charges) 6,624/-
Total amount to be paid Rs.9,85,890/-
Thus, as per the calculations made in the table above, Opposite Parties No.1 to 3, are legally entitled to only Rs.9,85,890/-, under various heads, as discussed hereinbefore.
18. Whether, the complainant is entitled to compensation, under Section 14(1)(d) of the Act, on account of mental agony and physical harassment and injury caused to her, is the next question, that requires determination. The complainant booked the villa/unit, in question, with the hope to have a shelter over her head, but her hopes were dashed to the ground, when Opposite Parties No.1 to 3, failed to deliver physical possession of the unit, in question, within the stipulated period, despite the fact that huge amount of Rs.53.50 lacs was paid by her. Even as per the Agreement, possession of the unit was to be delivered within a period of 24 months from the date of execution of the Agreement i.e. latest by 19.05.2015 but they failed to deliver the unit within the stipulated period and neither informed the complainant regarding stage wise construction and regarding payment to be paid by them. In this view of the matter, the complainant, in our considered opinion, is entitled to compensation, for mental agony and physical harassment caused to her, at the hands of Opposite Parties No.1 to 3, to the tune of Rs.1.00 lac (one lac), which could be said to be reasonable.
19. Since we are granting possession alongwith compensation and litigation expenses, therefore, the complainant is not entitled to any other relief, as claimed by her, in the prayer clause.
20. No other point, was urged by the Counsel for the Parties.
21. The complaint qua Opposite Party No.4 stands dismissed.
22. For the reasons recorded above, the complaint is partly accepted with costs, against Opposite Parties No.1 to 3, in the following manner:-
(i) Complainant is directed to make the payment of sale consideration of the balance amount of Rs.9,85,890/- to Opposite Parties No.1 to 3, within a period of one month from the date of receipt of a certified copy of the order.
(ii) Opposite Parties No.1 to 3 shall jointly and severally hand over the legal physical possession of the unit, in question, within a period of four months, to the complainant, from the date of receipt of a certified copy of this order, on payment of the legally due amount, by the complainant.
(iii) Opposite Parties No.1 to 3 shall jointly and severally execute the sale/conveyance deed and get it registered in the name of the complainant after handing over the actual physical possession of unit, in question, within a period of one month thereafter. The stamp duty, registration charges and all other incidental and legal expenses for execution and registration of sale deed shall be borne by the complainant.
(iv) Opposite Parties No.1 to 3 are further jointly and severally, directed to pay compensation, in the sum of Rs.1.00 lac (one lac) for causing mental agony and physical harassment, to the complainant, within two months from the date of receipt of a certified copy of this order.
(v) Opposite Parties No.1 to 3 are further jointly and severally, directed to pay cost of litigation, to the tune of Rs.50,000/- to the complainant.
(vi) In case the order is not complied with, within the stipulated period, as indicated above, then Opposite Parties No.1 to 3 shall be jointly and severally liable to pay the amount mentioned in Clause (iv) alongwith interest @12% per annum from the date of default, till realization, besides payment of cost of litigation.
Complaint Case No.203 of 2016 titled 'Anand Shankar & Anr. Vs. M/s Premium Acres Infratech Pvt. Ltd. & Ors.'
23. It is relevant to note that the facts of the case are the same, as mentioned in CC/68/2017, except villa No.90 having an approximately area of 1700 sq. ft. So, there is no need to reiterate it again.
24. Opposite Parties No.1 to 3 filed joint written statement, in which, they took similar objections as mentioned in the aforesaid consumer complaint No.68 of 2017 i.e. regarding Annexures C-1 and C-2 (allotment letter and Buyer Agreement) are forged and fabricated documents and stated that price of the villa, in question, was Rs.65 lacs instead of Rs.41 lacs ; territorial jurisdiction ; non joinder of necessary party i.e. Mr.Amit Jain and complainant is not consumer as per the Consumer Protection Act, 1986. It was admitted regarding purchase of villa No. 90 (Copper Villa), in question and receipt of the amount of Rs.45,50,000/- from the complainant.
25. Opposite Party No.5 (Sh.Sanjay Jain) filed the same reply, as filed in earlier Consumer Complaint No.68 of 2017, so there is no need to reiterate it again.
26. After going through the documents produced by both the parties, we are of the view that all the objections leveled by Opposite Parties No.1 to 3 in their written statement i.e. Annexures C-1 & C-2 are forged and fabricated documents ; territorial jurisdiction ; non joinder of necessary party and complainants are not consumers have already decided by this Commission in the aforesaid Consumer Complaint No.68 of 2017, so there is no need to reiterate it again.
27. As regards inflation charges of Rs.9,52,898/-, as per Annexure R-2, is concerned, it may be stated here that Clause 11 of the Buyer Agreement, reads as under:-
"The price for the unit stipulated herein is based on wholesale index for all commodities as ruling in. However, during the progress of the work, escalation in cost takes place which will be based on all India wholesale Index for all commodities the effect of such increase as assessed by the Company and intimated to the intending (allottees) shall be payable by him/her over and above the price. The decision of the Company in this respect shall be final and binding on the intending Allottees(s). The increased incidence may be charged and recovered by the Company from the intending allottee(s) with anyone or more of the installments or separately".
It is evident, from afore-extracted Clause 11 of the Buyer Agreement, that Opposite Parties No.1 to 3, were entitled to escalation in cost, during the course of construction work, based on All India Wholesale Index for all commodities. Based on this Clause, Opposite Parties No.1 to 3, submitted Annexure R-3 at page 85 i.e. With all Commodities. The Buyer Agreement was executed between the parties on 20.05.2013 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 19.05.2015. The parties were bound by the terms and conditions of the Agreement, duly signed by them. Under these circumstances, Opposite Parties No.1 to 3, were entitled to escalation in cost of the unit, in question, if any, for the years from 2012-2013, 2013-2014 and 2014-2015. For the years 2012-2013, the inflation charges shown, in the document Annexure R-3 are Rs.2,82,551.93Ps, for 2013-2014, the same have been shown as Rs.2,53,902.03Ps and for 2014-2015, the same have been shown as Rs.88,958.06Ps. This escalation in cost was worked out, by Opposite Parties No.1 to 3, on the basis of Wholesale Price Index of the commodities, for these years. No cogent and reliable evidence was produced by the complainant, to rebut the calculation of inflation charges made by Opposite Parties No.1 to 3, for the years 2012-2013, 2013-2014 and 2014-2015. Under these circumstances, the complainants are liable to pay Rs.6,25,412.02Ps (say Rs.6,25,412/-). (Rs.2,82,551.93Ps. plus (+)Rs.2,53,902.03Ps + Rs.88,958.06Ps ), on account of escalation in cost, as calculated by Opposite Parties No.1 to 3.
28. So far as the escalation in cost, with regard to the remaining years is concerned, Opposite Parties No.1 to 3, are not entitled to the same. In case, for the years aforesaid Opposite Parties No.1 to 3, are also held entitled to escalation in cost, then there will be no end to their nefarious activities. If the unscrupulous builders continue delaying construction of the units/flats/villas, allotted to the consumers, for years together, then the latter cannot be penalized for the same. If the builders are given liberty to continue construction of the units, beyond the promised date of delivery of possession, as per the Agreement, without existence of any circumstances, beyond their control, then they may delay the construction, for years together, and the consumers will suffer at their hands, on account of making payment of escalation in cost. It would thus amount to indulgence into unfair trade practice. The submission of Opposite Parties No.1 to 3 in this regard, being devoid of merit, must fail, and the same stands rejected.
29. As far as the levying of delayed interest payment of Rs.8,09,905/- is concerned, it may be stated here that the complainant was not informed about the stage of construction of the unit, in question because it is not practically possible for the complainant to visit again and again at the site and check the status of construction and make the payment. Even Opposite Parties No.1 to 3 never bothered to even reply to the letter dated 01.12.2015 and 14.01.2016 written by the complainant to them (Annexures C-5 & C-6). So, we are of the view that since the complainant was not informed regarding the stages of construction at the site and the construction at the site was not going on as per the schedule, therefore, no delayed payment interest is leviable.
30. The next question, that falls for consideration, is as to what amount is required to be paid by the complainant. It is, no doubt, true that the complainant opted Construction Linked Installment Plan and as per the payment plan, the total consideration of the unit, in question, was Rs.44,50,400/-, which includes EDC & PLC. It is not disputed that the complainant paid the total amount of Rs.45,50,000/- for the unit, in question. On going through the demand raised by Opposite Parties No.1 to 3 (Annexure R-2), we are of the considered opinion that the following amounts are liable to be paid by the complainant at the time of taking over the possession :-
S.No Heads Amount (Rs.)
1.
Basic Sale Price + EDC + PLC Noting remains to be paid, since the complainant has paid Rs.45,50,000/- which includes BSP + EDC + PLC + Service Tax + Building Cess
2. Service Tax + Building Cess (Balance) 80,438/-
3. Club charges 50,000/-
4. IFMS 1,00,000/-
5. Sewerage 20,000/-
6. Electricity 50,000/-
7. Water 40,000/-
8. Service tax on services 16,500/-
9. Inflations 6,25,412/-
10. Add. Maintenance charges) 6,624/-
Total Amount to be paid Rs.9,88,974/-
Thus, as per the calculations made in the table above, Opposite Parties No.1 to 3, are legally entitled to only Rs.9,88,974/-, under various heads, as discussed hereinbefore.
31. 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 villa/unit, in question, with the hope to have a shelter over his head, but his hopes were dashed to the ground, when Opposite Parties No.1 to 3, failed to deliver physical possession of the unit, in question, within the stipulated period, despite the fact that huge amount of Rs.45.50 lacs was paid by him. Even as per the Agreement, possession of the unit was to be delivered within a period of 24 months from the date of execution of the Agreement i.e. latest by 19.05.2015 but they failed to deliver the unit within the stipulated period and neither informed the complainant regarding stage wise construction and regarding payment to be paid by them. 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 Opposite Parties No.1 to 3, to the tune of Rs.1.00 lac (one lac), which could be said to be reasonable.
32. Since we are granting possession alongwith compensation and litigation expenses, therefore, the complainant is not entitled to any other relief, as claimed by him, in the prayer clause.
33. No other point, was urged by the Counsel for the Parties.
34. The complaint qua Opposite Party No.4 stands dismissed.
35. For the reasons recorded above, the complaint is partly accepted with costs, against Opposite Parties No.1 to 3, in the following manner:-
(i) Complainant is directed to make the payment of sale consideration of the balance amount of Rs.9,88,974/- to Opposite Parties No.1 to 3, within a period of one month from the date of receipt of a certified copy of the order.
(ii) Opposite Parties No.1 to 3 shall jointly and severally hand over the legal physical possession of the unit, in question, within a period of four months, to the complainant, from the date of receipt of a certified copy of this order, on payment of the legally due amount, by the complainant.
(iii) Opposite Parties No.1 to 3 shall jointly and severally execute the sale/conveyance deed and get it registered in the name of the complainant after handing over the actual physical possession of unit, in question, within a period of one month thereafter. The stamp duty, registration charges and all other incidental and legal expenses for execution and registration of sale deed shall be borne by the complainant.
(iv) Opposite Parties No.1 to 3 are further jointly and severally, directed to pay compensation, in the sum of Rs.1.00 lac (one lac) for causing mental agony and physical harassment, to the complainant, within two months from the date of receipt of a certified copy of this order.
(v) Opposite Parties No.1 to 3 are further jointly and severally, directed to pay cost of litigation, to the tune of Rs.50,000/- to the complainant.
(vi) In case the order is not complied with, within the stipulated period, as indicated above, then Opposite Parties No.1 to 3 shall be jointly and severally liable to pay the amount mentioned in Clause (iv) alongwith interest @12% per annum from the date of default, till realization, besides payment of cost of litigation.
36. Certified copy of this order be placed in Consumer Complaint No.69 of 2017.
37. Certified Copies of this order be sent to the parties, free of charge.
38. The file be consigned to Record Room, after completion.
Pronounced.
25.08.2017 Sd/-
[JUSTICE JASBIR SINGH [RETD.] PRESIDENT Sd/- [DEV RAJ] MEMBER Sd/- [PADMA PANDEY] MEMBER rb