State Consumer Disputes Redressal Commission
Jasjit Singh & Others vs M/S Premium Acres Infratech Pvt. Ltd., & ... on 29 May, 2017
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH Consumer Complaint No. 563 of 2016 Date of Institution 09.09.2016 Date of Decision 29.05.2017 Sh. Jasjit Singh S/o Late Sh. Surinder Singh, resident of 44, Novella Place, Brampton, Ontario L6S5X1, Canada. Smt. Nirbhai Kaur W/o Late Sh. Surinder Singh, resident of House No.326, Sugar Mill Road, Ward No.5, Morinda, Distt. Ropar, Punjab. Both through power of attorney holder Harshvinder Singh S/o Sh.Tara Singh R/o Hamayunpur Sirhind, Tehsil and Distt. Fatehgarh Sahib, Punjab. .......Complainants V E R S U S 1] M/s Premium Acres Infratech Pvt. Ltd., SCO No.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 its General Manager. 3] Parminder Singh Sehgal (Director), Premium Acres Infratech Private Limited r/o H.No.1227, Sector 42-B, Chandigarh - 160036. Second Address :- 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 complainants.
Sh.Parminder Singh, Advocate for Opposite Parties No.1 to 3.
Opposite Party No.4 exparte vide order dated 01.11.2016.
PER PADMA PANDEY, MEMBER In brief, the facts of the case are that Opposite Parties No.1 to 3 i.e. Premium Acres Infratech Pvt. Ltd. (in short "the Company" only) launched the project of "TDI City" with great marketing and advertising all over the Punjab and the complainants were allured by the Company, who depicted the magnanimous benefits of the said project. The complainants alongwith Late Sh. Surinder Singh (father of complainant No.1 and husband of complainant No.2) applied for a Villa in the project of Opposite Parties No.1 to 3 (Company) vide application dated 01.03.2010. The Company allotted villa No.83 having an approximate built up area of 1700 sq. ft. to the complainants vide allotment letter dated 01.03.2010 (Annexure C-1). Thereafter, Buyer Agreement was executed between the parties on 03.03.2011 (Annexure C-2). As per Clause 9 of the Agreement, possession of the unit was to be handed over within a period of 24 months from the date of the Agreement i.e. latest by 02.03.2013. It was further stated that the total consideration of the unit was Rs.54,92,000/- including basic sale price + EDC + PLC. The complainants had opted Construction Linked Payment Plan. The complainants had made the initial payment of Rs.8,20,000/- on 01.03.2010 and, thereafter, made the payment of Rs.16,72,000/- till the execution of the Agreement. Subsequently, the complainants made the entire payment of Rs.60,15,567/- vide receipts (Annexure C-3 colly.). It was further stated that the payments were made by the complainants, as per the demand raised by the Company telephonically. The Company sent a demand letter dated 06.02.2013 (Annexure C-4), whereby, they demanded an amount of Rs.12,69,828/-, which included IFMS, water, sewerage and electricity charges and was also given a discount of Rs.80,000/-. It was mentioned in the said letter that the villa should be ready for possession by 15.04.2013. It was further stated that the interest on delayed payment amounting to Rs.1,71,924/- had been wrongly charged by the Company, for which, the complainants contacted them regarding rectification and after discussion, the Company agreed to waive off the interest amount. Accordingly, the complainants made the payment of Rs.10,97,904/- alongwith Rs.50,000/- more for club charges. The Company further demanded an amount of Rs.6,47,904/- vide demand letter dated 13.03.2013 and interestingly, again an amount of Rs.2,45,000/- was shown to be pending against IFMS, water, sewerage and electricity charges and it was also mentioned that the unit should be ready for possession on 15.05.2013. It was further stated that despite making the entire payment, the date of possession had been very conveniently extended by the Company. It was further stated that after repeated requests of the complainants, the Company issued receipt dated 25.03.2013 [Annexure C-3 (ii)], whereby, the Company admitted to have received an amount of Rs.60,15,567/- from the complainants. It was further stated that the father of complainant No.1 and husband of complainant No.2 i.e. Late Sh.Surinder Singh, who was also co-allottee of the said villa, expired on 07.01.2014 and, as such, complainant No.1 was keen to shift back to his home country, so that he could stay alongwith his widow mother but the Company stopped the construction work in 2013, after receipt of last payment from the complainants. Complainant No.2 tried to contact the Company and also visited the site for taking possession of the said villa/unit but the Company insisted that there was payment pending due against the complainants. Complainant No.2 also wrote a letter dated 15.04.2015 (Annexure C-5) to the Company requesting them to handover possession of the said villa but to no avail. Despite repeated requests, there was no communication from the side of the Company and the Company only responded on 28.10.2015, when they sent payment default notice, in which, it was intimated that the unit is ready for possession and only finishing touches like removable fittings are pending, which would be installed only after the complainants cleared all the legal dues. It was further stated that the complainants were shocked to see that an amount of Rs.13,02,031/- was pending against the complainants (Annexure C-6). Further, the Company again levied electrical, water, sewerage charges alongwith IFMS and service tax. Even the club membership fee, which has already been paid by the complainants was again levied. The Company also levied inflation charges, holding charges as well as maintenance charges, without even handing over possession of the said villa. It was further stated that the Company maintained complete silence from March, 2013 to October, 2015 and all of a sudden issued payment default notice dated 28.10.2015 (Annexure C-6). It was further stated that the earlier demand letter dated 27.08.2015, as mentioned in the payment default notice, was never received by the complainants. The Company had made arbitrary calculations just to extort maximum amount of money from the complainants. It was further stated that there was no proper approach road to the said villa and no park & amenities in the surrounding area. The Company had abandoned the construction work of the said villa. The complainants were compelled to send a legal notice dated 18.07.2016 (Annexure C-9) to the Company to hand over possession but they did not bother to reply to the same. It was further stated that as per the Agreement, if the construction is delayed in the normal course, then the Company shall pay Rs.15000/- per month as delay charges for the period of delay but the Company failed to pay the same. It was further stated that the EDC charges have been paid by the complainants but there was no development in Sector 110-111. It was further stated that the Company did not have the required sanctions/permissions for the development of the site. It was further stated that the Company has also not procured the necessary approvals from the necessary authority of Pollution Control Board, Forest Department and GMADA. Even the Company have not applied 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 complainants were not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (in short "Act" only), was filed.
2. Opposite Parties No.1 to 3, in their joint written statement, have stated that the complainants have not come to this Commission with clean hands, as they had failed to pay the amount in time and even not paid the complete amount due to the fact that the construction of the villa stood completed since 2014. It was further stated that the complainants also failed to follow the terms and conditions of the Agreement & allotment letter and not responded to the different demand notices sent on 24.07.2014, 27.08.2014, 28.10.2015, 24.12.2015, 15.01.2016, 25.01.2016 and 04.03.2016 (Annexure R-7 colly.). It was further stated that the documents (Annexures C-1 & C-2) have not been issued by the authorized person but the terms and conditions of the said documents are same, as of the standard allotment letter and Agreement of the replying Opposite Parties. It was further stated that when the complainants did not respond to these different demand notices (Annexure R-7 colly.) then the replying Opposite Parties were left with no other alternative, but to cancel the unit/villa of the complainants vide cancellation notice dated 22.04.2016 (Annexure R-8). It was admitted regarding receipt of the total amount of Rs.60,15,567/- from the complainants and still an amount of Rs.17,24,348/- was due upto 15.10.2016 (Annexure R-2), and they failed to pay the said amount and accordingly the villa stood cancelled and they were informed through Annexure R-8 that they should come to complete the formalities and take back their refund amount. It was further stated that the documents annexed by the complainants 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, 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.4 alongwith one Sh.Amit Jain qua the forgery committed by them in preparing the allotment letter and Buyer Agreement, 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 these persons are adamant of not making the payment, which they are legally liable to make. It was further stated that the replying Opposite Parties has filed criminal complaints not only against Opposite Party No.4, one Mr.Amit Jain as well as others alongwith the present complainants also, because it is stated that due to these persons, the replying Opposite Parties have suffered financial losses. It was further stated that the complainants have not purchased the property for residential purpose, as complainant No.1 is residing in Canada and complainant No.2 has also filed the present complaint through power of attorney and therefore, it shows that they purchased the property only for speculation purposes. It was further stated that the complaint is not maintainable on the ground of non joinder of necessary party i.e. Sh.Amit Jain because he signed the Buyer's Agreement. It was further stated that the replying Opposite Parties were never informed regarding the death of first applicant Sh.Surinder Singh. It was admitted regarding booking of the villa, execution of the Agreement and receipt of the amount, as alleged by the complainants. It was further stated that the replying Opposite Parties have entered into a Tripartite Agreement with TDI as well as the Buyer/Customer where it has been stated that the replying Opposite Parties has 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 that the construction of the villa stands completed since 2014 except for removable fittings, whereas, the complainants have not paid the complete amount against the villa, although the villa was completed by the replying Opposite Parties from their own funds. It was admitted that as per Clause 9 of the Agreement, possession was to be delivered within a time period of 24 months but is subject to other terms and conditions such as timely payment, as per the schedule opted by the complainants. It was further stated that the construction work suffered 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. It was the duty of the complainants to make the payment in time but due to non-payment made by them, the replying Opposite Parties were forced to cancel the unit. It was denied that the aggregate sale price of the villa is Rs.54,92,000/- because apart from the Basic Sale Price + EDC + PLC, the other charges i.e. service tax, club charges, IFMS, sewerage, electricity, water etc., as per Annexure R-2, are to be included in the total product cost, which comes out to Rs.77,39,916/-, which is to be paid at the time of final possession and in this case since 24.07.2014 (Annexure R-7) the construction work was complete and only removable fittings are left but the complainants ignored to make these payments and therefore, the villa stood cancelled vide Annexure R-8 and if the complainants made the balance payment, as per Annexure R-2, then the possession would be handed over within a time perid of 20-30 days from the date of complete payment. It was further stated that as per Clause 4(a) of the Agreement, the Company is not liable to inform the complainants regarding the progress of construction work, rather the duty is upon the complainants to come present at the site and check the construction work. It was denied that the complainants have paid to the tune of Rs.2,45,000/- for IFMS, water, sewerage and electricity charges and Rs.50,000/- for club charges. It was further stated that the letter dated 02.06.2013 (Annexure C-4) is a forged and fabricated document, which is not even signed by the authorized person. It was further stated that the alleged receipt dated 25.03.2013 - Annexure C-3 (II) was not issued by the authorized and competent person. It was denied regarding receipt of letter (Annexure C-5) dated 15.04.2015 because it is not addressed to Opposite Party No.3 at proper address and this shows that this letter is an afterthought and was created just to make a point. It was further stated that there is not even a single evidence on record which shows that the proper road of the villa and amenities are there. As per Annexure R-9, the photographs of the surrounding areas clearly shows the development of the area. It was further stated that there was no delay from the side of replying Opposite Parties because the delay was from the side of the complainants, as they have not made the payment in time and therefore, the question of Rs.15,000/- per month to the complainants is out of question. 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.
3. Initially Mr.Sanjay Jain, Opposite Party No.4 appeared in person but thereafter he did not appear, as such, he was proceeded against exparte vide order dated 01.11.2016.
4. The complainants filed rejoinder to the written statement of Opposite Parties No.1 to 3, wherein they reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of Opposite Parties No.1 to 3.
5. The Parties led evidence, in support of their case.
6. We have heard the Counsel for the contesting parties and have gone through the evidence and record of the case, carefully.
7. 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 03.03.2011 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 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 of Chandigarh has closed and this Commission has no jurisdiction, has also no value, at all because at the time of booking of the villa/unit by the complainants, the office of the Company was functioning at Chandigarh. It means that the Company kept the complainants 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 complainants, 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 complainants, at Chandigarh. Accordingly, this Commission at Chandigarh, in view of the provisions of Section 17 of the Act, has territorial Jurisdiction to entertain and decide the complaint. The submission of the Counsel for Opposite Parties No.1 to 3, in this regard, therefore, being devoid of merit, must fail and the same stands rejected.
8. The objection taken by Opposite Parties No. 1 to 3, to the effect that the complainants have not purchased the property for residential purpose, as complainant No.1 is residing in Canada and complainant No.2 has also filed the present complaint through power of attorney, which shows that they purchased the property only for speculation purposes and, as such, they cannot be termed as "Consumer" under the Consumer Protection Act, 1986. After going through the record, we are not agreeing with the contention of the Counsel for Opposite Parties No.1 to 3 because the complainants, in their complaint have stated that father of complainant No.1 and husband of complainant No.2 i.e. Sh. Surinder Singh, who was the main allottee, wanted to shift to Mohali keeping in view the better medical facilities available in the tricity. However, Sh. Surinder Singh expired in January, 2014. Even Sh. Surinder Singh had executed a registered Will dated 06.09.2013, whereby, he had given his share in the said villa to his son i.e. complainant No.1. Copies of death certificate and Will are Annexures C-7 & C-8. Even the Company was informed regarding the death of Sh. Surinder Singh vide letter dated 15.04.2015 by complainant No.2. Copy of the letter and postal receipt is at Annexure C-5. Not only this, the complainants in para No.7 of their rejoinder have clearly stated that they bought the said villa for their own residential purposes, as complainant No.1 is planning to come back and settled down in his home country alongwith his mother. The complainants further stated that Opposite Parties No.1 to 3 cannot assume that complainant No.2 does not require the property for residential purposes, since the complaint has been filed through power of attorney. It was further stated that complainant No.2 is an old lady and it is difficult for her to pursue the matter with this Commission due to which complainant No.2 has given the power of attorney to Mr. Harshvinder Singh. Even otherwise, the mere fact that it was a residential villa, which was allotted, in favour of the complainants, was sufficient to prove that it was to be used for the purpose of residence, by the complainants. There is nothing, on the record, that the complainants are property dealers, and deal in the sale and purchase of property. Moreover, with regard to the objection taken by the Counsel for Opposite Parties No.1 to 3 that complainant No.1 is resident of Canada and, even no law debars an NRI, who basically belonged to India, to purchase a residential property in India. Under similar circumstances, the Hon'ble National Commission, in a case titled as Smt. Reshma Bhagat & Anr. Vs. M/s Supertech Ltd. Consumer Complaint No. 118 of 2012, decided on 04.01.2016, held as under:-
"We are unable to clap any significance with these faint arguments. It must be borne in mind that after selling the property at Bangalore, and in order to save the money from riggers of capital gain tax, under Section 54 of the Income Tax Act, 1961, there lies no rub in getting the property, anywhere, in whole of India. There is not even an iota of evidence that they are going to earn anything from the flat in dispute. From the evidence, it is apparent that the same had been purchased for the residence of the complainants. Moreover, Sh. Tarun S. Bhagat, who is an independent person. It cannot be made a 'rule of thumb' that every NRI cannot own a property in India. NRIs do come to India, every now and then. Most of the NRIs have to return to their native land. Each NRI wants a house in India. He is an independent person and can purchase any house in India, in his own name."
Thus, in the absence of any cogent evidence, in support of the objection raised by the Counsel for Opposite Parties No.1 to 3, mere bald assertion to that effect, cannot be taken into consideration. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. Consumer Complaint No.137 of 2010, decided on 12.02.2015, 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, Revision Petition No. 3861 of 2014, decided on 26.08.2015. The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. Under these circumstances, by no stretch of imagination, it can be said that, complainant No.1 being resident of Canada and complainant No.2 has given power of attorney to other person, the villa/unit, in question, was purchased by the complainants, by way of speculation purposes, with a view to earn profit, in future. The complainants, thus, fall within the definition of a 'consumer', as defined under Section 2(1)(d) of the Act. Such an objection, taken by the Counsel for Opposite Parties No.1 to 3 in this regard, being devoid of merit, is rejected.
9. 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 complainants booked the villa/unit of M/s Premium Acres Infratech Pvt. Ltd. and paid the huge amount in respect of the unit and they did not know who is Mr. Amit Jain. If the aforesaid official/any other official received the amount of the unit from the complainants 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.
10. The next question that falls for consideration is whether Annexures C-1 & C-2 i.e. allotment letter and Buyer Agreement attached by the complainants alongwith their 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 but the terms and conditions are the same as of the standard allotment letter and Buyer Agreement of the replying Opposite Parties. 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.4) 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.60,15,567/- for the villa, in question from the complainants. He further submitted that Mr.Amit Jain, who was not even authorized to sign any document of the Company had issued allotment letter and also entered into a Buyer Agreement and signed on behalf of the Company. 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 complainants submitted that the complainants were being victimized due to the internal disputes amongst the Directors of the Company. It is true that the complainants booked the villa/unit, in question. A bare perusal of the allotment letter (Annexure C-1) clearly reveals that unit No.83 (Silver) was allotted in Sector 110, Mohali to the complainants. It is also the admitted fact that the complainants opted for Construction Linked Installment Plan, in which, Basic Sale Price of the unit is clearly mentioned as Rs.48,80,000/- (at page No.29 of the file) and the said allotment letter was duly signed by the complainants as well as Authorised Signatory of the Company. Thereafter, Buyer Agreement was executed between the parties at Chandigarh on 03.03.2011. A bare perusal of Construction Linked Installment Plan, mentioned in the Buyer Agreement, clearly reveals that Basic Sale Price is mentioned as Rs.48,80,000/- 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 unit, in question and receipt of the amount of Rs.60,15,567/- from the complainants, 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.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 complainants from the Company and not from any individual official of the Company. After receipt of the huge amount from the complainants, Opposite Parties No.1 to 3 cannot be questioned regarding the authenticity of the documents. Mr.Amit Jain was one of the Directors of the Company, who had signed the allotment letter as well as 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 authorized signatory 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 complainants ? 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. 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.
11. The next question, that falls for consideration, is as to whether, Opposite Parties No.1 to 3 rightly cancelled the villa/unit of the complainants. It is no doubt, true that the complainants booked the unit in the project of Opposite Parties No.1 to 3/Company and Buyer Agreement was also executed between the parties, at Chandigarh, on 03.03.2011. As per Clause 9 of the Agreement, possession of the unit was to be delivered within a maximum period of 24 months from the date of Agreement i.e. latest by 02.03.2013. It is the admitted fact that the complainants deposited the total amount of Rs.60,15,567/- in respect of the villa/unit, in question. According to Counsel for Opposite Parties No.1 to 3, the complainants failed to pay the complete payment, as the villa/unit was completed since 2014 and they have not followed the terms and conditions of the Agreement & allotment letter and also not responded to the demand notices dated 24.07.2014, 27.08.2014, 28.10.2015, 24.12.2015, 15.01.2016, 25.01.2016 and 04.03.2016 (Annexure R-7 colly.) then Opposite Parties No.1 to 3 left with no other alternative but to cancel the villa/unit of the complainants vide cancellation notice dated 22.04.2016 (Annexure R-8). He further submitted that the complainants deposited the amount of Rs.60,15,567/- and still an amount of Rs.17,24,348/- was due upto 15.10.2016 (Annexure R-2), but they failed to pay the said amount, as such, villa/unit stood cancelled and they (complainants) were informed through Annexure R-8 that they should come to complete the formalities and take back their refund amount. Opposite Parties No.1 to 3 also placed on record photographs of the villa to prove that the villa/unit is almost complete. On the other hand, the complainants in their rejoinder denied regarding receipt of demand notices - Annexure R-7 (colly.), except for demand notice dated 28.10.2015. It was further stated that as per the Company, demand notice dated 24.07.2014 was sent on the email ID of father of complainant No.1 and on the email ID of complainant No.1. The complainants further stated that father of complainant No.1 had already expired in January, 2014, hence, the complainants could not access the email account of father of complainant No.1. It was further pointed out that email ID of complainant No.1 had been wrongly mentioned, since it is not [email protected] and it is actually [email protected]. The complainants further denied the receipt of demand letter dated 24.07.2014, as there is no proof of sending of demand notice to the complainant. The complainants also denied the receipt of other demand notices dated 24.12.2015, 15.01.2016, 25.01.2016, 04.03.2016 and cancellation notice dated 22.04.2016 were sent on the email ID of father of complainant No.1, which was never received by the complainants because after the death of Sh.Surinder Singh, father of complainant No.1 and husband of complainant No.2, the complainants failed to access his email account. It is clearly proved that the aforesaid demand notices were never received by the complainants because after the death of Sh.Surinder Singh, they failed to access his account. So, we are of the view that Opposite Parties No.1 to 3 hurriedly cancelled the villa/unit of the complainants and, therefore, the said cancellation notice (Annexure R-8) is null and void.
12. As regards inflation charges of Rs.7,95,308/-, as per Annexure R-2, is concerned, it may be stated here that Opposite Parties No.1 to 3 vide Annexure R-3 has submitted calculation of inflation cost for the years 2011-2012 and 2012-2013, totaling Rs.7,95,308/-. It is observed from the said document that the cost of Rs.48,88,000/- adjusted by Opposite Parties No.1 to 3 from the total payment has been used as a base for calculation of inflation applying the wholesale price index, which works out to Rs.4,36,176.39 for the year 2011-2012 and Rs.3,59,131.49 for the year 2012-2013. It is surprising to note from the said document that Opposite Parties No.1 to 3 used the cost of Rs.48,80,000/- twice i.e. for the year 2011-2012 and again for the year 2012-2013 without giving any proper justification and details of the same, in the absence of which, we would be considering the inflation only for the year 2011-2012, which works out to Rs.4,36,176.39 (say Rs.4,36,176/-).
13. As far as the levying of delayed interest payment of Rs.1,71,677/- is concerned, it may be stated here that the complainants have already paid an amount of Rs.60,50,567/- in respect of the villa, in question, against the agreed price of Rs. 54,92,000/-, as is evident from the payment plan mentioned in the allotment letter (at page No.29 of the complainants documents), which includes EDC & PLC. The end date of possession, according to the Agreement, is 02.03.2013. The complainants opted Construction Linked Payment Plan. The complainants paid the maximum amount to Opposite Parties No.1 to 3 and only balance of 5% was to be paid at the time of possession. The builder enjoyed the money deposited by the complainants over a long period of time without completing the unit, in question. The villa/unit, which was handed over to the complainants in March, 2013 till date has not been handed over to them, clearly depicts deficiency on the part of the builder/Opposite Parties No.1 to 3 and, therefore, no interest on account of delayed payment is warranted.
14. With regard to deducting of Rs.5,13,589/- regarding delayed interest payment is concerned, it is true that Opposite Parties No.1 to 3 adjusted the payments made by the complainants against various heads arbitrarily. Moreover, the complainants were not informed regarding stages of the construction, since the complainants 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 to 3 cannot charge delayed interest payment. It is also pertinent to mention here that Opposite Parties No.1 to 3, despite receipt of the huge amount from the complainants, failed to deliver possession of the unit, in question. It is apparent from Annexure R-2 that Opposite Parties No.1 to 3 have wrongly deducted an amount of Rs.5,13,589/- towards delayed interest payment and the same needs to be credited back to the account of the complainants.
15. As far as the levying of holding charges of Rs.2,37,600/- is concerned, a perusal of the document annexed by Opposite Parties No.1 to 3 at Annexure R-2 reveals holding charges of Rs.2,37,600/-. Holding charges come into the picture when the villa/unit is complete and ready for possession and the complainants have refused or delaying in taking over the possession of the villa/unit. In the present case, the unit was to be delivered by 02.03.2013 and till date, the said villa/unit is not ready and not fit for possession. Therefore, in the present case, no holding charges is leviable by Opposite Parties No.1 to 3.
16. The next question, that falls for consideration, is as to what amount is required to be paid by the complainants. It is, no doubt, true that the complainants opted Construction Linked Installment Plan and as per the payment plan (at page No.29 of the complainants documents), the total consideration of the villa/unit, in question, was Rs.54,92,000/-, which includes Basic Sale Price + EDC + PLC - Discount. It is not disputed that the complainants paid the total amount of Rs.60,15,567/- for the villa/unit, in question. A bare perusal of the demand raised by Opposite Parties No.1 to 3 (Annexure R-2), it is clear that the Company after adjusted the amount paid by the complainants under different heads, demanded an amount of Rs.17,24,349/- from the complainants. After going through the demand raised by Opposite Parties No.1 to 3 vide Annexure R-2, we are of the considered opinion that the following amounts are liable to be paid by the complainants at the time of taking over the possession :-
S.No Heads Amount (Rs.)
1.
Basic Sale 2,80,169/-
2. Club charges 50,000/-
3. IFMS 1,25,000/-
4. Sewerage 30,000/-
5. Electricity 50,000/-
6. Water 40,000/-
7. Service tax on services 18,000/-
8. Inflations 4,36,176/-
9. Add:
Maintenance charges 6,595/-
Total Rs.10,35,940/-
Less Rs.5,13,589/- already adjusted in delayed payment interest Amount to be paid Rs.5,22,351/-
Thus, as per the calculations made in the table above, Opposite Parties No.1 to 3, are legally entitled to only Rs.5,22,351/-, under various heads, as discussed hereinbefore.
17. Whether, the complainants are entitled to compensation, under Section 14(1)(d) of the Act, on account of mental agony and physical harassment and injury caused to them, is the next question, that requires determination. The complainants booked the villa/unit, in question, with the hope to have a shelter over their head, but their 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.60,15,567/- was paid by them. Even as per the Agreement, possession of the villa/unit was to be delivered within a period of 24 months from the date of execution of the Agreement i.e. latest by 02.03.2013 but they failed to deliver the villa/unit within the stipulated period and neither informed the complainants regarding stage wise construction. In this view of the matter, the complainants, in our considered opinion, are entitled to compensation, for mental agony and physical harassment caused to them, at the hands of Opposite Parties No.1 to 3, to the tune of Rs.2.00 lacs (two lacs), which could be said to be reasonable.
18. Since we are granting possession alongwith compensation and litigation expenses, therefore, the complainants are not entitled to any other relief, as claimed by them, in the prayer clause.
19. No doubt, Opposite Parties No.1 to 3 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 to 3 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 to 3, 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 to 3 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.4 is no longer the Director of Opposite Parties No.1 to 3. Thus, no liability can be fastened upon Opposite Party No.4 by the complainants. The complaint against Mr.Sanjay Jain (Opposite Party No.4) deserves to be dismissed.
20. No other point, was urged by the Counsel for the Parties.
21. For the reasons recorded above, the complaint is partly accepted with costs, against Opposite Parties No.1 to 3, in the following manner:-
(i) Complainants are directed to make the payment of sale consideration of the balance amount of Rs.5,22,351/- 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 jointly and severally hand over the legal physical possession of the villa/unit, in question, within a period of four months, to the complainants, from the date of receipt of a certified copy of this order, on payment of the legally due amount, by the complainants.
(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 complainants after handing over the actual physical possession of villa/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 complainants.
(iv) Opposite Parties No.1 to 3 are further jointly and severally, directed to pay compensation, in the sum of Rs.2.00 lacs (two lacs) for causing mental agony and physical harassment, to the complainants, 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 complainants.
(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.
22. Certified Copies of this order be sent to the parties, free of charge.
23. The file be consigned to Record Room, after completion.
Pronounced.
29.05.2017 Sd/-
[JUSTICE JASBIR SINGH [RETD.] PRESIDENT Sd/- [DEV RAJ] MEMBER Sd/- [PADMA PANDEY] MEMBER rb STATE COMMISSION Consumer Complaint No. 563 of 2016 (Jasjit Singh & Anr. Vs. M/s Premium Acres Infratech (P) Ltd. & Ors.) Argued by: Mrs. Vertika H.Singh, Advocate for the complainants. Sh.Parminder Singh, Advocate for Opposite Parties No.1 to 3. Opposite Party No.4 exparte vide order dated 01.11.2016. Dated the 29th day of May, 2017 -.-
Vide our detailed order of the even date recorded separately, the complaint has been partly accepted with costs.
[DEV RAJ] MEMBER [JUSTICE JASBIR SINGH (RETD)] PRESIDENT [PADMA PANDEY] MEMBER rb