State Consumer Disputes Redressal Commission
Mr. Parvinder Pal Singh vs M/S Premium Acre Infratech Pvt.Ltd. on 31 July, 2017
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH Consumer Complaint No. 722 of 2016 Date of Institution 21.10.2016 Date of Decision 31.07.2017 Mr. Parvinder Pal Singh S/o Sh. Harinder Singh R/o Village Sekhan Majra, P.O. Karala, Tehsil & Distt. SAS Nagar (Mohali), Punjab. .......Complainant V E R S U S 1] M/s Premium Acre Infratech Pvt. Ltd., Correspondence Office : SCO No.139-141, Sector 17-C, First Floor, Opposite Mehfil Restaurant, Chandigarh through its Director/Authorized Representative. 2] M/s Premium Acre Infratech Pvt. Ltd., Villa No.205, TDI City, Premium Acre Court Yard, Sector 110-111, SAS Nagar (Mohali), through its Director. 3] M/s Premium Acre Infratech Pvt. Ltd., through its Director Sh.Sanjay Jain S/o Sh. M.R.Jain, R/o H.No.2235, Sector 21-C, Chandigarh. 4] Taneja Developers & Infrastructures Ltd., Regd. Office : 9, Kasturba Gandhi Marg, New Delhi 110001, through its Manager. ...... Opposite Parties Argued by: Sh.Raj Karn, Advocate for the complainant. Sh.Parminder Singh, Advocate for Opposite Parties No.1 & 2. Opposite Party No.3 exparte vide order dated 06.04.2017. Sh.S.K.Monga, Advocate for Opposite Party No.4. Consumer Complaint No. 172 of 2017 Date of Institution 23.02.2017 Date of Decision 31.07.2017 Mrs. Mandeep Kaur Gosal W/o Sh. P.S.Gosal, Vinter Gata 2/N3048, Drammen, Norway, through Authorised Representative Paramjit Kaur w/o Matan Singh r/o H.No.3188, Industrial Co-operative House Building Society, Sector 51-D, Chandigarh. .......Complainant V E R S U S 1] M/s Premium Acre Infratech Pvt. Ltd., Correspondence Office : SCO No.139-141, Sector 17-C, First Floor, Opposite Mehfil Restaurant, Chandigarh through its Director/Authorized Representative. 2] M/s Premium Acre Infratech Pvt. Ltd., Villa No.205, TDI City, Premium Acre Court Yard, Sector 110-111, SAS Nagar (Mohali), through its Director. 3] Sh.Sanjay Jain S/o Sh.M.R.Jain, Director, M/s Premium Acre Infratech Pvt. Ltd.,R/o H.No.2235, Sector 21-C, Chandigarh. 4] Taneja Developers & Infrastructures Ltd., Regd. Office : 9, Kasturba Gandhi Marg, New Delhi 110001, through its Manager. ...... Opposite Parties BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT SH.DEV RAJ, MEMBER
SMT.PADMA PANDEY, MEMBER Argued by:
Sh.Raj Karn, Advocate for the complainant.
Sh.Parminder Singh, Advocate for Opposite Parties No.1 & 2.
Sh.S.K.Monga, Advocate for Opposite Party No.4.
Service of Opposite Party No.3 dispensed with vide order dated 28.04.2017.
PER PADMA PANDEY, MEMBER By this order, we propose to dispose of, following cases:-
1.
CC/722/2016 Parvinder Pal Singh Vs. M/s Premium Acre Infratech Pvt. Ltd. & Ors..
2. CC/172/2017 Mandeep Kaur Gosal Vs. M/s Premium Acre Infratech Pvt. Ltd. & Ors..
2. Arguments were heard in common, in the above cases, as the issues involved therein, except minor variations, here and there, of law and facts, are the same.
3. At the time of arguments, on 25.05.2017, it was agreed between Counsel for the parties, that facts involved in the aforesaid complaints, by and large, are the same, and therefore, these complaints can be disposed of, by passing a consolidated order.
4. Under above circumstances, to dictate order, facts are being taken from Consumer complaint bearing No. 722 of 2016, titled as "Parvinder Pal Singh Vs. M/s Premium Acre Infratech Pvt. Ltd. & Ors.".
5. In brief, the facts of the case are that the complainant had a dream of having his own house and he wanted to setup his home in a locality, hence was waiting for some extremely well done housing project to come up near/in the vicinity of Chandigarh. The complainant made the payment of the application money of one flat in the project of M/s Premium Acre Infratech Pvt. Ltd. (hereinafter to be called as "Company") for the total consideration of Rs.26,50,000/- measuring 1440 sq. ft. in respect of unit No.1103 (second floor), Courtyard Avenue, TDI City, Sector 110, SAS Nagar, Mohali. The car parking was included in the price and preferential location charges were NIL. These particulars would be apparent from the perusal of draft Sale Agreement, vide which, the complainant purchased the said apartment, copy of which is Annexure C-1. The complainant is not in possession of the final sale documents, as the same has been submitted to the Company. It was further stated that after transfer of the apartment in the complainant's name, he received a statement of account dated 03.01.2013 in his name, acknowledging the payment of Rs.15,25,124/- towards the said apartment (Annexure C-2). It was further stated that the complainant received a news letter from the Company on 06.08.2013 (Annexure C-3). However, there was no mention of any development in Block 11 relating to the apartment allotted to the complainant. Thereafter, the complainant made various visits to the office of the Company but the grievances regarding non-development at the site and no sign of possession, were not redressed, rather the complainant was threatened to cancel the allotment of the flat, in question. It was further stated that no Buyer's Agreement was provided to the complainant but all the Agreements in other cases of the Company were executed at Chandigarh and as per Condition No.9 of the Agreement, delivery of the residential unit was to be given within a period of 24 months from the day when the Agreement was executed between the parties and buyer stood signed. If the Company failed to do the same within the stipulated period then compensation equal to Rs.7000/- per month as delay charges would be applicable. It was further stated that there was some dispute between the Director of Opposite Parties No.1 to 3 in August, 2013. The Company tried to extract more money through its Director namely Sh.Parminder Singh Sehgal and started issuing notice with false demands to some of the allottees. Thereafter, the complainant waited patiently for the next communication from the Company informing her about the progress of the project and also raised a demand qua the next stage of construction and, as such, the complainant made telephonic efforts to ascertain the actual status of the project, however, the complainant was asked to wait for the next communication from the side of the Company. It was further stated that the Company has failed to offer/deliver possession of the said apartment even after five years of booking of the said unit. The complainant paid the total amount of Rs.15,25,124/- in respect of the unit, in question, whereas, he was not liable to pay the interest on delayed payment, as it was a construction linked plan and there was no progress at the site. It was further stated that the unit is not ready for possession, as the necessary permissions has not been issued by the concerned authorities enabling the Company to hand over possession of the unit to the complainant. It was further stated that all the charges are illegal as no completion certificate has been issued till date and basic amenities are not present. It was further stated that after receipt of the huge amount, raised the demand on their own without any justification and threatening the complainant for cancellation of the unit, in case of non-deposit of the amount. 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.
6. Opposite Parties No.1 & 2, in their joint written statement, have stated that the flat, in question, is still in the name of Sh.Munish Sharma and the said flat was neither transferred nor any document endorsed in favour of the complainant, as the complainant is not a consumer qua the replying Opposite Parties. It was further stated that the documents (Annexures C-2 & C-3) were neither issued by the replying Opposite Parties, as the record of these letters were not with the replying Opposite Parties and, therefore, these documents are forged and fabricated one. It was further stated that in view of fraud and forgery committed by some of the old and shunted out employees like Opposite Party No.3, Sh.Amit Jain and others, and the question of producing forged and fabricated documents cannot be ruled out and it requires detailed investigation. It was further stated that the documents Annexure C-1 (Colly.), which is alleged to be indemnity bond as well as sale Agreement alongwith supported affidavits (unattested, undated and not verified at all) and nowhere on these documents the replying Opposite Parties acknowledged the receipt of these documents. So, this shows that the present complaint is based on the forged and fabricated documents. It was further stated that due to aforesaid, FIR was registered against Mr.Sanjay Jain, Mr.Amit Jain & others for their illegal conspiracy and the fraud committed by them with the Company. It was further stated that the role played by Opposite Party No.3 alongwith one Sh.Amit Jain in preparing the different letters and other documents without any authority, which caused a great loss to the replying Opposite Parties. It was further stated that this Commission has no territorial jurisdiction to adjudicate the complaint, as Clause 36 of the Agreement clearly states that Courts at Delhi alone have the jurisdiction for adjudication of all the matters arising out in connection with the Agreement and even the concerned Chandigarh office is lying closed for the last so many years. It was further stated that 75% of the persons are fully satisfied and have paid their dues and have already been given the possession, whereas, only some of the persons are adamant of not making the payment, which they are legally liable to make. It was further stated that the complaint is not maintainable, as it clearly shows that the complainant seems to be only interested in reaping profits by way of investment and this also goes with Sh.Munish Sharma, who is still the owner in the records of the replying Opposite Parties. It was further stated that no documents in the form of transfer/endorsement shown or annexed with the complaint and moreover no transfer fee was paid. Relying upon forged and fabricated documents (Annexures C-1 to C-3) the complainant wants to earn profit either by seeking possession without making full and complete payment or by seeking return of the whole amount, without any authority. It was further stated that the complaint is not maintainable on the ground of non joinder of necessary parties i.e. Sh. Munish Sharma (owner) and Sh.Amit Jain because he (Mr.Amit Jain) signed the documents, which is forged and fabricated. It was admitted regarding receipt of the amount of Rs.15,26,124/- only, which is around only 50% of the BSP. It was further stated that even today, the replying Opposite Parties is ready to offer any other complete built up property of same size and area, if Mr.Munish Sharma, the original owner as per the records of the replying Opposite Parties makes the complete due payment as per Annexure R-2 or refund amount calculated as per the allotment letter (Annexure R-7) and Application-cum-Registration Form (Annexure R-8) comes to the tune of Rs.6,24,038/- only. It was admitted that all the rights are vested with the replying Opposite Parties, whereas, Opposite Party No.4 is the Master Developer of the land, in question. It was denied the total cost of the unit is Rs.26,50,000/- because it is the cost of only the Basic Sale Price of the unit and other costs, which is mentioned in summary calculation (Annexure R-2) under different heads and if Sh.Munish Sharma or the complainant, after getting the flat transferred by paying the transfer fee at the rate of 2% of the Basic Sale Price, agreed to pay the full and complete amount, as per Annexure R-2 then flat, which is ready to be handed over could be allotted to the concerned person. It was further stated that flat also could be constructed on the full and complete payment, as per Annexure R-2 and possession could be given in a time period of six months because it is to be seen that the construction of the flat is complete till the level of the payment is made and for this, the replying Opposite Parties cannot be held liable. It was further stated that the above-mentioned payment is not in time, as per the construction linked plan, opted by Sh.Munish Kumar, mentioned in Annexure R-7 & R-8. It was further stated that Buyer's Agreement was not executed between Sh.Munish Sharma (original owner) and the replying Opposite Parties because the complainant made the payment of Rs.15,26,124/- only till 30.10.2012, thereafter, no payment was made and, therefore, Buyer's Agreement executed at Chandigarh and question of giving possession within 24 months, as per condition No.9 of the Agreement, does not arise. It was further stated that complete payment was not made, and accordingly the question of compensation of Rs.7000/- per month as delayed charges is totally irrelevant. It was admitted regarding receipt of the amount of Rs.15,26,124/- only, which is not even 50% of the BSP, whereas, complete remaining due payment upto 20.12.2016 is Rs.22,09,581/- and if that payment is paid, then possession could be handed over after completing the flat, in question because in the construction linked plan, the flat cannot be completed and the possession be given unless and until the complete, full and in time payment is made. It was further stated that the replying Opposite Parties never threatened the complainant to make the payment, as he has no relation whatsoever with the replying Opposite Parties. 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.
7. Opposite Party No.3 in his short reply, admitted that the complainant deposited an amount of Rs.15,25,124/- with Premium Acres Infratech Pvt. Ltd. It was stated that Sh. Parminder Singh Sehgal & Smt. Parminder Kaur Sehgal, alleged Directors - Premium Acres Infratech Pvt. Ltd. have not only defrauded the replying Opposite Party but also committed criminal breach of trust and several other frauds with the Company and, as such, he lodged an FIR (Annexure OP-3/1) against them and also attached copy of CFSL report (Annexure OP-3/2). It was further stated that due to the disputes between the Directors of the Company, the complainant should not be made to suffer. It was further stated that another FIR dated 13.04.2016 was registered against the captioned persons for cheating, fraud and breach of trust done by Mr. Kapil Aggarwal, Chartered Accountant C/o B.Aggarwal and Co. in criminal conspiracy with Mr.Parminder Singh Sehgal and his wife Smt. Parminder Kaur Sehgal and other associates (Annexure OP-3/5). It was further stated that Mrs. & Mr. P.S.Sehgal have left no stone unturned to harass all the allottees of the project of the Company by fabricating and manipulating the entire account statements of the allottees just to extort maximum money from the allottees. It was further stated that the letters have been issued by the Company on the instructions of Mr.P.S.Sehgal and the replying Opposite Party has been fraudulently disassociated by Mr.P.S.Sehgal since June, 2014 and hence the replying Opposite Party has not been dealing with the affairs of the Company since June, 2014. However, the dispute regarding the ownership and Directorship of the Company is pending before the Hon'ble Company Law Board, New Delhi. Hence, the replying Opposite Party could not be held liable for any kind of grievance of the complainant arising after June, 2014. It was further stated that neither there was any deficiency, in rendering service, on the part of replying Opposite Party, nor he indulged into unfair trade practice and prayed for dismissal of the complaint qua Opposite Party No.3.
8. Opposite Party No.4, in its reply, by way of affidavit of Mr. Deepak Nayyar, Chief Executive Officer of TDI Infratech, stated that the complaint was not maintainable against it as there was no relationship of consumer and service provider between it and the complainant. It was further stated that Opposite Party No.4 is in the business of development of various residential and commercial complexes in various cities of India like Gurgaon, New Delhi, Agra, Moradabad, Sonepat, Kundli, Panipat, Karnal, Mohali and Chandigarh. It was further stated that apart from potential users, who seek allotments of individual plots, various investors also make their investments by making bulk purchases of plots in various townships developed/being developed by Opposite Party No.4. It was further stated that Opposite Parties No.1 to 3, approached Opposite Party No.4 for purchase of 150 fully developed residential plots measuring 192 sq. yards each in order to develop the same and to further sell off the same to the prospective buyers. It was further stated that Opposite Party No.4 is not having any interference with the development, and construction activity, by Opposite Parties No.1 to 3 over the aforesaid 150 plots. It was further stated that Opposite Party No.4 is not even party to the draft sale Agreement annexed with the complaint. It was further stated that the complaint is wholly misconceived against Opposite Party No.4. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.4, nor it indulged into unfair trade practice.
9. Initially Mr.Sanjay Jain, Opposite Party No.3 appeared in person and filed reply but from 17.03.2017 none appeared on his behalf. Hence, Opposite Party No.3 was proceeded against exparte vide order dated 06.04.2017.
10. The complainant filed rejoinder to the written statement of Opposite Parties No.1 & 2, wherein he reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of Opposite Parties No.1 & 2.
11. The Parties led evidence, in support of their case.
12. We have heard the Counsel for the contesting parties and have gone through the evidence and record of the case, carefully.
13. The first question, that falls for consideration, is as to whether, this Commission has got territorial Jurisdiction to entertain and decide the consumer complaint, or not. No doubt, Counsel for Opposite Parties No.1 & 2, submitted that since the parties as per Clause 36 of the Buyer Agreement, agreed that the Courts at Delhi alone, would have Jurisdiction, for adjudication of all matters arising out or in connection with the same (Agreement). He further submitted that the concerned office at Chandigarh was lying closed for the last so many years, so, this Commission has got no territorial Jurisdiction, to entertain and decide the complaint. The submission of Counsel for Opposite Parties No.1 & 2, in this regard, being devoid of merit, is liable to be rejected, for the reasons, to be recorded hereinafter. In the first instance, it may be stated here, that the Consumer Foras' are not the Courts. It is pertinent to note that in the present case, Buyer Agreement was not executed between the parties in respect of the unit, in question. Even in the other matters of the same Company, vide Clause 36 of the Agreement, only confers Jurisdiction on the Courts at Delhi. Under these circumstances, no help can be drawn, from this Clause for coming to the conclusion, that this Commission at Chandigarh, has no territorial Jurisdiction, to entertain and decide the instant complaint. In Associated Road Carriers Ltd. Vs. Kamlender Kashyap and Ors., I (2008) CPJ 404 (NC), it was held by the National Commission, that a clause of Jurisdiction, by way of an Agreement, between the parties, could not be made applicable, to the Consumer Complaints, filed before the Consumer Foras, as the Foras are not the Courts. It was further held, in the said case, that there is a difference between Section 11 of the Act, which is a para materia to Section 17 of the Act and the provisions of Sections 15 to 20 of the Civil Procedure Code, regarding the place of Jurisdiction. Now the plea of Counsel for Opposite Parties No.1 & 2 that the Company office of Chandigarh has been closed and this Commission has no jurisdiction, has also no value, at all because at the time of booking of the unit, the office of the Company was functioning at Chandigarh. It means that the Company kept the allottee in dark since no such communication was ever sent to the allottee regarding closing down of the Chandigarh office. Moreover, the letters dated 1/3/2013 & 8/6/2013 (Annexures C-2 & C-3) annexed by the complainant, issued by the Company from their Chandigarh office clearly shows the Chandigarh address of the Company on the aforesaid document. As such, a part of cause of action, accrued to the complainant, at Chandigarh. Accordingly, this Commission at Chandigarh, in view of the provisions of Section 17 of the Act, has territorial Jurisdiction to entertain and decide the complaint. The submission of the Counsel for Opposite Parties No.1 & 2, in this regard, therefore, being devoid of merit, must fail and the same stands rejected.
14. The objection taken by Opposite Parties No. 1 & 2, to the effect that the flat, in question, is still in the name of Sh.Munish Sharma (original allottee) and the same was neither transferred nor any document was endorsed in favour of the complainant, and relying upon the forged and fabricated documents, the complainant wants to earn profit either by seeking possession without making full and final payment or by seeking refund of the whole amount without any authority. The complainant in para No.2 of his rejoinder has clearly stated that he completed all the formalities on his part, however, the Opposite Parties never come forward to complete the further formalities to transfer the papers of the unit purchased by the complainant from Sh.Munish Sharma through Opposite Parties. The complainant further stated in para No.8 of his rejoinder that he purchased the property for his residential purpose for setting up her home in the urban vicinity. The complainant further stated that the Opposite Parties (No.1 & 2) to shield their fault never asked the complainant to deposit the transfer fee. Even it is the duty of Opposite Parties No.1 and 2 to send letter to Sh.Munish Sharma to know whether he sold his flat to the complainant or not but they did not do so. Moreover, the plea of Counsel for Opposite Parties No.1 and 2 that in their record, the said flat is still in the name of Sh.Munish Sharma is concerned, the complainant has placed on record Annexure C-2. A bare perusal of the said document (Annexure C-2) clearly reveals that the said letter dated 1/3/2013 was sent by Opposite Parties No.1 and 2 Sh.Parvinder Pal Singh i.e. the complainant and they also confirmed regarding receipt of the amount of Rs.15,25,124/- from the complainant. So, the plea of Counsel for Opposite Parties No.1 and 2 has no value, at all, and the same stands rejected.
15. The next question that falls for consideration is whether the complaint is maintainable on the ground of non-joinder of necessary party i.e. Sh.Munish Sharma (original owner of the flat) and Mr.Amit Jain, who has allegedly signed the documents. It may be stated here that the complainant purchased the flat from the original allottee Sh.Munish Sharma and to prove this fact, the complainant has placed on record copies of request for transfer letter (at page No.17 of the file) and Sale Agreement, Affidavit cum Undertaking (at page Nos. 18 to 21), which was signed by Sh.Munish Sharma and the complainant. It is upon the complainant whether he should implead Sh.Munish Sharma, as a party in the present case or not. So far as, with regard to implead Sh.Amit Jain as a party is concerned, the complainant booked the unit of M/s Premium Acres Infratech Pvt. Ltd. and paid the huge amount in respect of the unit and he did not know who is Mr. Amit Jain. If the aforesaid official/any other official received the amount of the unit from the allottee and signed the Buyer Agreement, it was done by him being an employee, who had received the said amount on behalf of the Company. In the present case, we do not feel that Sh.Munish Sharma and Mr.Amit Jain are necessary parties. So, the objection taken by Opposite Parties No.1 & 2 has no force, at all and the same stands rejected.
16. The next question that falls for consideration is whether letters dated 1/3/2013 & 8/6/2013 (Annexures C-2 & C-3) attached by the complainant alongwith his complaint are forged and fabricated documents. The Counsel for Opposite Parties No.1 & 2 submitted that the documents Annexures C-1 & C-2 are forged and fabricated documents because the same were never issued by the replying Opposite Parties, and the record of these letters were not with the replying Opposite Parties, so this shows that these documents are forged and fabricated one. It was further stated that in view of fraud and forgery committed by some of the old and shunted out employees like Opposite Party No.3, Sh.Amit Jain and others, the question of producing forged and fabricated documents cannot be ruled out and it required detailed investigation. He further submitted that these documents are created with the active connivance with Mr.Sanjay Jain, Mr.Amit Jain and others for causing huge loss to the Company. He further submitted that Mr.Sanjay Jain (Opposite Party No.3) and Mr. Amit Jain, embezzled its (Company) huge amount and also played fraud with it (Company). He further admitted the receipt of the amount of Rs.15,25,124/- for the unit, in question. He further submitted that Mr.Amit Jain, who was not even authorized to sign any document of the Company had issued the aforesaid documents and signed on behalf of the Company. He further submitted that an FIR has been registered against Mr. Sanjay Jain, Mr. Amit Jain and others for their illegal conspiracy regarding the fraud committed by them with the Company. It is, no doubt, true that Mr.Sanjay Jain and Mr.Amit Jain were the officials of the Company. On the other hand, Counsel for the complainant submitted that the complainant was being victimized due to the internal disputes amongst the Directors of the Company. A bare perusal of the letter dated 03/1/2013 (Annexure C-2) clearly reveals that the aforesaid letter was sent by the Company to the complainant i.e. Parvinder Pal Singh and admitted regarding receipt of the amount of Rs.15,25,124/- in respect of the unit, in question. The aforesaid letter (Annexure C-2) was duly signed by the responsible officer of the Company. It is not understandable that when the Company admitted regarding the booking of the unit, in question by Sh.Munish Sharma (original allottee) and receipt of the amount of Rs.15,25,124/- from him, then how could they deny the issuance of aforesaid documents? It is admitted that the aforesaid disputed document was signed by Mr.Amit Jain because he is on the reputed post of the Company. It is pertinent to note that the said unit was purchased by the complainant from Sh.Munish Sharma and not from any individual official of the Company. After receipt of the huge amount from the complainant, the Company cannot be questioned regarding the authenticity of the documents. Mr.Amit Jain was one of the Directors of the Company, who had signed the aforesaid document on behalf of the Company. The aforesaid letter was issued by the Company on the letter head of the Company, after signatures. 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-2 & C-3 issued by the aforesaid officials on behalf of the Company and not on his/their personal capacity. This was an internal affair of the Company vis-à-vis its Director who allegedly committed fraud with it (Company). If the aforesaid officials allegedly embezzled the huge amounts of the Company, and defrauded it, then it (Company) can proceed against them, for the recovery of amount, by filing a civil suit, and also under the criminal law by lodging an FIR. For their alleged acts of omission and commission, the third parties, cannot suffer. So, the objection taken by Counsel for Opposite Parties No.1 & 2 regarding the authenticity of both the documents (Annexures C-2 & C-3) has no force, at all, and the same stands rejected.
17. As regards inflation charges of Rs.2,32,674/-, as per Annexure R-2, is concerned, it may be stated here that no Agreement was executed between the parties in respect of the unit, in question. If had the Agreement been executed between the parties, the time frame for giving possession of the unit fully developed in all respects is 24 months. In the present case, since there is no Agreement executed, the date of the allotment letter would be taken as a base for handing over of possession. The said allotment letter has been issued in the year 2011 and accordingly the project should have been completed and possession should have been handed over within time period of two years. Therefore, it is logical to charge inflation for two years period i.e. 2011-12 and 2012-13, which works out to Rs.1,06,130.93 (to say Rs.1,06,130/-) as against the total amount of Rs.2,32,674/- demanded by the builder.
18. So far as the escalation in cost, with regard to the remaining years is concerned, Opposite Parties No.1 & 2, are not entitled to the same. In case, for the years aforesaid Opposite Parties No.1 & 2, are also held entitled to escalation in cost, then there will be no end to their nefarious activities. If the unscrupulous builders continue delaying construction of the units/flats/villas, allotted to the consumers, for years together, then the latter cannot be penalized for the same. If the builders are given liberty to continue construction of the units, beyond the promised date of delivery of possession, as per the Agreement, without existence of any circumstances, beyond their control, then they may delay the construction, for years together, and the consumers will suffer at their hands, on account of making payment of escalation in cost. It would thus amount to indulgence into unfair trade practice. The submission of Opposite Parties No.1 & 2 in this regard, being devoid of merit, must fail, and the same stands rejected.
19. As far as the levying of delayed interest payment of Rs.1,56,062/- is concerned, it may be stated here that the complainant was not informed about the stage of construction of the unit, in question because it is not practically possible for the complainant to visit again and again at the site and check the status of construction and make the payment. So, we are of the view that since the complainant was not informed regarding the stages of construction at the site and the construction at the site was not going on as per the schedule, no delayed payment interest is, therefore, leviable.
20. With regard to deducting of Rs.1,53,463/- regarding delayed interest payment is concerned, it is true that Opposite Parties No.1 and 2 adjusted the payments made by the complainant against various heads arbitrarily. Moreover, the complainant was not informed regarding stages of the construction, since the complainant opted Construction Linked Payment Plan. In the absence of the knowledge of the complainant with regard to stages of construction of the unit, Opposite Parties No.1 and 2 cannot charged delayed interest payment. It is also pertinent to mention here that out of the basic sale price, as agreed in the allotment letter, the complainant had made huge amount to the complainant in respect of the unit, in question. It is apparent from Annexure R-2 that Opposite Parties No.1 and 2 have wrongly deducted an amount of Rs.1,53,463/- towards delayed interest payment and the same needs to be credited back to the account of the complainant.
21. The next question, that falls for consideration, is as to what amount is required to be paid by the complainant. It is, no doubt, true that the complainant opted Construction Linked Installment Plan and as per the payment plan (at page No.91 of Opposite Parties No.1 and 2 documents), the total consideration of the unit, in question, was Rs.30,31,800/-, which includes Basic Sale Price + EDC & PLC. It is not disputed that the complainant paid the total amount of Rs.15,26,124/- for the unit, in question, as is evident from Annexure R-2. A bare perusal of the demand raised by Opposite Parties No.1 and 2 (Annexure R-2), it is clear that the Company after adjusting the amount paid by the complainant under different heads, demanded an amount of Rs.22,09,581/- from the complainant. After going through the demand raised by Opposite Parties No.1 and 2 vide Annexure R-2, we are of the considered opinion that the following amounts are liable to be paid by the complainant at the time of taking over the possession :-
S.No Heads Amount (Rs.)
1.
Basic Sale Price 26,50,000/-
2. Total paid amount 15,26,124/-
3. Balance (Sr.No.1 minus Sr.No.2) 11,24,876/-
4. PLC 2,65,000/-
5. EDC 1,16,800/-
6. Service Tax + Building Cess 62,381/-
7. Club charges 50,000/-
8. IFMS 50,000/-
9. Sewerage 20,000/-
10. Electricity 30,000/-
11. Water 30,000/-
12. Service tax on services 12,000/-
13. Inflations 1,06,130/-
14. Add. Maintenance charges) 6,595/-
Total Rs.18,73,782/-
Less Rs.1,53,463/- already adjusted in delayed payment interest Amount to be paid Rs.17,20,319/-
Thus, as per the calculations made in the table above, Opposite Parties No.1 & 2, are legally entitled to only Rs.17,20,319/-, under various heads, as discussed hereinbefore.
22. 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 purchased the 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 & 2, failed to deliver physical possession of the unit, in question, within the stipulated period, despite the fact that huge amount of Rs.15,26,124/- as admitted by the Company, was paid by him. Even no Agreement was executed between the parties and neither informed the complainant regarding stage wise construction. In this view of the matter, the complainant, in our considered opinion, is entitled to compensation, for mental agony and physical harassment caused to him, at the hands of Opposite Parties No.1 & 2, to the tune of Rs.1.00 lac (one lac), which could be said to be reasonable.
23. 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.
24. No doubt, Opposite Parties No.1 and 2 submitted in their written statement that Mr.Sanjay Jain had embezzled huge amount of the Company and had played fraud with them and, as such, a criminal case against him and employees, referred to above, was lodged. It may be stated here, that if there was any dispute between Opposite Parties No.1 & 2 and its Director Sanjay Jain and he allegedly played fraud with the Company and allegedly embezzled its amount, then the third party i.e. the consumers were not to suffer. The consumers while dealing with the Company, did not know as to who were the Directors thereof, and how their internal affairs were being managed. In case, Mr. Sanjay Jain, former Director of Opposite Parties No.1 and 2, allegedly played fraud with them, or allegedly embezzled the amount belonging to the Company, then the consumers could not be held liable to suffer for that. Opposite Parties No.1 and 2 had their legal remedy of recovery of the amount allegedly embezzled by Sanjay Jain, Ex-Director, by filing a Civil Suit and also proceeding against him under the criminal law. Opposite Party No.3 is no longer the Director of Opposite Parties No.1 and 2. Thus, no liability can be fastened upon Opposite Party No.3 by the complainant. The complaint against Mr.Sanjay Jain (Opposite Party No.3) deserves to be dismissed.
25. Coming to the liability of Opposite Party No.4, it may be stated here, that the services of Opposite Party No.4 were not hired by the complainant, and, as such, the question of payment of consideration to it never arose. Hence, the complaint against Opposite Party No.4 is liable to be dismissed.
26. No other point, was urged by the Counsel for the Parties.
27. For the reasons recorded above, the complaint is partly accepted with costs, against Opposite Parties No.1 & 2 jointly and severally, in the following manner:-
(i) Complainant is directed to make the payment of sale consideration of the balance amount of Rs.17,20,319/- to Opposite Parties No.1 & 2, within a period of one month from the date of receipt of a certified copy of the order.
(ii) Opposite Parties No.1 & 2 shall jointly and severally hand over the legal physical possession of the unit, in question, within a period of four months, to the complainant, from the date of receipt of a certified copy of this order, on payment of the legally due amount, by the complainant.
(iii) Opposite Parties No.1 & 2 shall jointly and severally execute the sale/conveyance deed and get it registered in the name of the complainant after handing over the actual physical possession of unit, in question, within a period of one month thereafter. The stamp duty, registration charges and all other incidental and legal expenses for execution and registration of sale deed shall be borne by the complainant.
(iv) Opposite Parties No.1 & 2 are further jointly and severally, directed to pay compensation, in the sum of Rs.1.00 lacs (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 & 2 are further jointly and severally, directed to pay cost of litigation, to the tune of Rs.33,000/- to the complainant.
(vi) In case the order is not complied with, within the stipulated period, as indicated above, then Opposite Parties No.1 & 2 shall be jointly and severally liable to pay the amount mentioned in Clause (iv) alongwith interest @12% per annum from the date of default, till realization, besides payment of cost of litigation.
28. Complaint qua Opposite Parties No.3 & 4 stands dismissed.
Complaint No.172 of 2017 titled Mandeep Kaur Gosal Vs. Premium Acres Infratech Pvt. Ltd.
29. The complainant was allotted unit No.6401 (Ground Floor) in the project "The Courtyard", Sector 110 at TDI City Mohali vide allotment letter (Annexure C-2). Thereafter, Buyer's Agreement was executed between the parties at Chandigarh on 02.10.2012 (Annexure C-3). According to Condition No.9 of the Agreement, possession of the unit was to be delivered within a period of 24 months from the date of Agreement i.e. latest by 01.10.2014. The complainant paid the huge amount of Rs.32,50,000/- but despite receipt of the aforesaid amount, Opposite Parties No.1 and 2 failed to offer possession of the unit.
30. With regard to cancellation letter dated 11.04.2016 (Annexure R-8) is concerned, it may be stated here that the plea raised by Opposite Parties No.1 and 2 with regard to same has no significant value in the eyes of law because by that time they had already committed material breach of terms and conditions of the Agreement. As such, the cancellation made vide letter aforesaid is illegal and is set aside.
31. As regards inflation charges of Rs.8,38,107/-, as per Annexure R-2, is concerned, it may be stated here that the parties had entered into an Agreement dated 02.10.2012, according to which, the end date of handing over of possession is 01.10.2014. Opposite Parties No.1 and 2 vide Annexure R-2 had charged an exorbitant amount of inflation working out to Rs.8,38,107/- for the years from 2010-11 to 2014-15. Going by the Agreement, the process of construction should be completed within a period of two years i.e. between 2012-13 and 2013-14, for which, the complainant is liable to pay the inflation amount and not for the prior period of 2010-2011 and 2011-12 when Opposite Parties No.1 and 2 had collected huge sum of money from the complainant and enjoyed the interest accruing on that. Therefore, the complainant is liable to pay an amount of Rs.4,73,382.07 towards inflation for the years ended 2012-13, 2013-14.
32. So far as the escalation in cost, with regard to the remaining years is concerned, Opposite Parties No.1 & 2, are not entitled to the same. In case, for the years aforesaid Opposite Parties No.1 & 2, are also held entitled to escalation in cost, then there will be no end to their nefarious activities. If the unscrupulous builders continue delaying construction of the units/flats/villas, allotted to the consumers, for years together, then the latter cannot be penalized for the same. If the builders are given liberty to continue construction of the units, beyond the promised date of delivery of possession, as per the Agreement, without existence of any circumstances, beyond their control, then they may delay the construction, for years together, and the consumers will suffer at their hands, on account of making payment of escalation in cost. It would thus amount to indulgence into unfair trade practice. The submission of Opposite Parties No.1 & 2 in this regard, being devoid of merit, must fail, and the same stands rejected.
33. As far as the levying of delayed interest payment of Rs.7,65,579/- is concerned, it may be stated here that the complainant was not informed about the stage of construction of the unit, in question because it is not practically possible for the complainant to visit again and again at the site and check the status of construction and make the payment. So, we are of the view that since the complainant was not informed regarding the stages of construction at the site and the construction at the site was not going on as per the schedule, no delayed payment interest is, therefore, leviable.
34. With regard to deducting of Rs.2,87,906/- regarding delayed interest payment is concerned, it is true that Opposite Parties No.1 and 2 adjusted the payments made by the complainant against various heads arbitrarily. Moreover, the complainant was not informed regarding stages of the construction, since the complainant opted Construction Linked Payment Plan. In the absence of the knowledge of the complainant with regard to stages of construction of the unit, Opposite Parties No.1 and 2 cannot charged delayed interest payment. It is also pertinent to mention here that out of the basic sale price, as agreed in the allotment letter, the complainant had made huge amount to the complainant in respect of the unit, in question. It is apparent from Annexure R-2 that Opposite Parties No.1 and 2 have wrongly deducted an amount of Rs.2,87,906/- towards delayed interest payment and the same needs to be credited back to the account of the complainant.
35. The next question, that falls for consideration, is as to what amount is required to be paid by the complainant. It is, no doubt, true that the complainant opted Construction Linked Installment Plan and as per the payment plan (at page No.43 of the complainant's documents), the total consideration of the unit, in question, was Rs.37,01,300/-, which includes Basic Sale Price + EDC & PLC. It is not disputed that the complainant paid the total amount of Rs.32,50,000/- for the unit, in question. A bare perusal of the demand raised by Opposite Parties No.1 and 2 (Annexure R-2), it is clear that the Company after adjusting the amount paid by the complainant under different heads, demanded an amount of Rs30,67,871/- from the complainant. After going through the demand raised by Opposite Parties No.1 and 2 vide Annexure R-2, we are of the considered opinion that the following amounts are liable to be paid by the complainant at the time of taking over the possession :-
S.No Heads Amount (Rs.)
1.
Basic Sale Price 33,50,000/-
2. Total paid amount 32,50,000/-
3. Balance (Sr.No.1 minus Sr.No.2) 1,00,000/-
4. PLC 2,34,000/-
5. EDC 58,400/-
6. Service Tax + Building Cess 17,325/-
7. Club charges 50,000/-
8. IFMS 50,000/-
9. Sewerage 20,000/-
10. Electricity 30,000/-
11. Water 30,000/-
12. Service tax on services 12,000/-
13. Inflations 4,73,382.07/-
14. Add. Maintenance charges) 6,624/-
Total Rs.10,81,731/-
Less Rs.2,87,906/- already adjusted in delayed payment interest Amount to be paid Rs.7,93,825/-
Thus, as per the calculations made in the table above, Opposite Parties No.1 & 2, are legally entitled to only Rs.7,93,825/-, under various heads, as discussed hereinbefore.
36. Whether, the complainant is entitled to compensation, under Section 14(1)(d) of the Act, on account of mental agony and physical harassment and injury caused to her, is the next question, that requires determination. The complainant booked the unit, in question, with the hope to have a shelter over her head, but her hopes were dashed to the ground, when Opposite Parties No.1 & 2, failed to deliver physical possession of the unit, in question, within the stipulated period, despite the fact that huge amount of Rs.32,50,000/- was paid by her. Even the complainant was never informed regarding stage wise construction. In this view of the matter, the complainant, in our considered opinion, is entitled to compensation, for mental agony and physical harassment caused to her, at the hands of Opposite Parties No.1 & 2, to the tune of Rs.1,50,000/-, which could be said to be reasonable.
37. 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.
38. Coming to the liability of Opposite Party No.4, it may be stated here, that the Buyer Agreement (Annexure C-3) was executed between the complainant and Opposite Parties No.1 and 2. Even the services of Opposite Party No.4 were not hired by the complainant, and, as such, the question of payment of consideration to it never arose. Hence, the complaint against Opposite Party No.4 is liable to be dismissed.
39. No other point, was urged by the Counsel for the Parties.
40. For the reasons recorded above, the complaint is partly accepted with costs, against Opposite Parties No.1 & 2, in the following manner:-
(i) Complainant is directed to make the payment of sale consideration of the balance amount of Rs.7,93,825/- to Opposite Parties No.1 & 2, within a period of one month from the date of receipt of a certified copy of the order.
(ii) Opposite Parties No.1 & 2 shall jointly and severally hand over the legal physical possession of the unit, in question, within a period of four months, to the complainant, from the date of receipt of a certified copy of this order, on payment of the legally due amount, by the complainant.
(iii) Opposite Parties No.1 & 2 shall jointly and severally execute the sale/conveyance deed and get it registered in the name of the complainant after handing over the actual physical possession of unit, in question, within a period of one month thereafter. The stamp duty, registration charges and all other incidental and legal expenses for execution and registration of sale deed shall be borne by the complainant.
(iv) Opposite Parties No.1 & 2 are further jointly and severally, directed to pay compensation, in the sum of Rs.1.5 lacs for causing mental agony and physical harassment, to the complainant, within two months from the date of receipt of a certified copy of this order.
(v) Opposite Parties No.1 & 2 are further jointly and severally, directed to pay cost of litigation, to the tune of Rs.50,000/- to the complainant.
(vi) In case the order is not complied with, within the stipulated period, as indicated above, then Opposite Parties No.1 & 2 shall be jointly and severally liable to pay the amount mentioned in Clause (iv) alongwith interest @12% per annum from the date of default, till realization, besides payment of cost of litigation.
41. Complaint qua Opposite Parties No. 4 stands dismissed.
42. Certified Copies of this order be sent to the parties, free of charge.
43. The file be consigned to Record Room, after completion.
Pronounced. Sd/- 31.07.2017 [JUSTICE JASBIR SINGH [RETD.] PRESIDENT Sd/- [DEV RAJ] MEMBER Sd/- [PADMA PANDEY] MEMBER rb