National Consumer Disputes Redressal
Parmit Sharma vs M/S. Premium Acre Infratech Pvt. Ltd. & ... on 18 July, 2016
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 928 OF 2015 (Against the Order dated 15/10/2015 in Complaint No. 165/2015 of the State Commission Chandigarh) 1. PARMIT SHARMA SON OF SH. DARSHAN PAL SHJARMA, R/O. FLAT NO. 4418, DARSHAN VIHAR, SECTOR-68, MOHALI PUNJAB ...........Appellant(s) Versus 1. M/S. PREMIUM ACRE INFRATECH PVT. LTD. & ANR. THROUGH ITS GENERAL MANAGER, VILLA NO. 205, TDI CITY PREMIUM ACRE COURT YARD, SECTOR-110-111, S.A.S. NAGAR, MOHALI , PUNJAB 2. DIWAN HOUSING FINANCE CORPORATION COMPANY LIMITED, SCO NO. 62, FIRST FLOOR, SECTOR-26, CHANDIGARH ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE V.K. JAIN, PRESIDING MEMBER
For the Appellant : Mr. Sandeep Bhardwaj, Advocate For the Respondent : Mr. Pawan Kumar Ray, Advocate
Dated : 18 Jul 2016 ORDER
JUSTICE V.K. JAIN (ORAL)
The appellant applied to the respondent - M/s Premium Acre Infratech Pvt. Ltd. (hereinafter referred to as the respondent/opposite party) for allotment of a villa in a project, namely, the 'Court Yard', which the respondent was to develop in Sector 110 of Mohali. A booking amount of Rs.5 lakhs was paid by the appellant while submitting his application dated 8.5.2010. Vide letter dated 17.5.2010, Villa No.95 was provisionally allotted to the appellant. This provisional allotment was followed by the allotment letter dated 6.6.2010 whereby the composite sale price of the villa was fixed at Rs.49,30,400/-. The following were the terms of payment as per the allotment letter:-
"Composite Sale Price (CSP) Amount in Rs.
At the time of Registration 20% of BSP 9,16,000.00 Within 3 months of allotment 10% of BSP 4,58,000.00 Within 3 months of First Installment 10% of BSP 4,58,000.00 On commencement of demarcation of plot 10% of BSP 4,58,000.00 On casting of ground floor roof 7.50% of BSP 3,43,500.00 On casting of first floor roof 7.50% of BSP 3,43,500.00 On casting of second floor roof 7.50% of BSP + 25% of EDC 4,31,100.00 On start of brick work & internal plastering 7.50% of BSP + 25% of EDC 4,31,100.00 On start of flooring 5% of BSP + 25% of EDC 3,16,600.00 On start of Internal electrification 5% of BSP + 25% of EDC 3,16,600.00 On start of internal plumbing 5% of BSP 2,29,000.00 On final notice of possession 5% of BSP +IFMS 2,29,000.00 100% 49,30,400.00"
2. The parties then entered into a Buyer's Agreement dated 20.1.2011 whereby the respondent agreed to deliver possession of the villa to the complainant/appellant within 18 months plus grace period of 6 months from the date of the said agreement, failing which it was to pay Rs.15,000/- per month as compensation for the delay. Inclusive of the grace period, the last date for delivery of the possession of the villa was 19.1.2013. Since the appellant wanted to avail a housing loan for making payment to the respondent, a Tripartite Agreement was also executed between the appellant, the respondent and M/s Dewan Housing Finance Corporation Ltd., Chandigarh. The complainant paid an amount of Rs.45,15,100/- to the respondent till January 2013. The case of the complainant/appellant is that since the construction of the work was not progressing as per the schedule, he did not make payment of the last installment. The possession of the villa was not offered by the stipulated date, i.e., 19.1.2013.
3. Vide letter dated 6.10.2014, the respondent/opposite party cancelled the allotment made to the appellant, on the ground that the complainant had failed to take possession of the villa booked by him and informed him that he could collect the refund amount of Rs.29,17,819/- after completing the requisite formalities. Being aggrieved from the aforesaid cancellation, the appellant approached the concerned State Commission by way a consumer complaint seeking revocation of the said cancellation and a direction to the respondent to deliver possession of the villa to him along with compensation etc.
4. The complaint was resisted by the respondent on several grounds. Though the allotment made to the complainant and receipt of Rs.45,15,100/- from him was not disputed, it was alleged that the complainant had committed breach of the terms of the Buyer's Agreement by not making timely payment for the villa. It was further stated in the said reply that 70% construction work had been completed but further work had to be stopped on account of failure of the complainant to make the balance payment. It was also claimed by the opposite party that the construction was delayed to some extent on account of stay by the Punjab and Haryana High Court on the mining of sand in the area.
5. Vide order dated 15.10.2015, the State Commission directed the respondent to hand over the possession of the villa complete in all respects to the complainant within three months against payment of Rs.15,10,844.16 and execute the sale deed of the said villa in his favour. The respondent was also directed to pay Rs.15,000/- per month as compensation from 19.1.2013 besides Rs.2 lakhs as compensation for mental agony and Rs.50,000/- as cost of the litigation. Interest @ 9% p.a. was also awarded on the amount of compensation awarded to the appellant. The compensation for mental agony and harassment was to carry interest @ 12% per annum from the date of filing of the complaint in case it was not paid within a period of two months.
6. Being aggrieved from the order passed by the State Commission, the complainant is before this Commission by way of First Appeal No.928 of 2015. Since the opposite party is also aggrieved from the order passed by the State Commission, a separate appeal being First Appeal No.62 of 2016 has been filed by it.
7. The learned counsel for the opposite party states on instructions that he is not pressing the cancellation of the allotment and the opposite party is ready to deliver possession of the villa subject to payment of the demand raised by it. He further states that vide a recent letter dated 9.7.2016 they have informed the complainant that they are ready to give possession of the unit on clearing of the dues of the company. He further states that possession will be offered within 90-120 days of clearance of the dues. However, he admits, on instructions, that as on today, the construction is not complete in all respects and the opposite party has not applied for obtaining the Completion Certificate. The learned counsel for the appellant informs that without prejudice to his rights and contentions before this Commission, the appellant/complainant has already made the entire payment to the respondent in terms of the order of the State Commission. Therefore, the only issue which now survives in these appeals is as to what amount, if any, is payable by the complainant to the opposite party or vice versa.
8. The first question arises is as to how much was the total amount payable by the complainant to the opposite party. Admittedly the Basic Sale Price was Rs.45,80,000/-, External Development Charges of Rs.3,50,400/- and service tax comes to Rs.1,90,139/-. The State Commission in para 22 of its judgement has quantified the total amount payable by the appellant at Rs.62,05,213/-. The complainant is now disputing only four items, i.e., club charges amounting to Rs.50,000/-, IFMS charges amounting to Rs.1 lakh, service tax on services amounting to Rs.15,400/-, delayed payment interest of Rs.4,73,088/-, and inflations limited escalation, amounting to Rs.3,29,621/-.
9. As far as club charges are concerned, admittedly the same are payable but the contention of the appellant is that said charges would be payable when the construction of the club is complete and the club is ready for being used by the allottees. Admittedly, the agreement between the parties does not specify the club charges nor does it indicate the stage on which the said charges would be payable. The learned counsel for the complainant states that the complainant is ready to pay the club charges of Rs.50,000/- but only at the stage when the club is functional and the complainant is allowed to use the said club. Since the complainant is interested in availing the facilities of the club, I am of the considered view that the said charges should be paid by him, when the construction of the club building is complete and the facilities in the club are ready for being used by the allottees. As and when the aforesaid stage is reached, the opposite party shall intimate the complainant and he will make the payment within four weeks thereafter. If he fails to make the payment, he shall not be entitled to use the club facilities.
10. As per clause 22 of the Buyer's Agreement, the complainant is required to pay interest free security deposit to be worked out at the time of handing over the possession, on super area basis. Since the possession of the villa booked by the complainant has not even been offered to him till date, the payment of Rs.1 lakh as IFMS is not justified. The opposite party shall work out the IFMS on super area basis, while offering possession of the villa to the complainant and if the complainant is aggrieved from the demand so raised, he shall be entitled to avail such remedy as may be open to him under law at the relevant time.
11. As per the payment plan agreed by the complainant, 20% of the BSP, i.e., Rs. 9,16,000/- was payable at the time of registration. The registration in this case happened on 8.5.2010. However, vide letter dated 17.5.2010, the opposite party granted time till 8.6.2010 to complete 20% of the BSP. The complainant made payment before the aforesaid date. Therefore, no interest on account of delay in 20% of the BSP is payable.
The next installment was payable by 5.9.2010 within three months of the allotment. There was some delay in payment of this installment for which the agreed interest can be charged by the opposite party.
The next installment fell due on 4.12.2010. Again there was some delay for which agreed interest can be charged by the opposite party.
The next installment was payable on commencement of demarcation of the plot. As per the annexures to the affidavits filed today by the opposite party, the stage of the commencement of the demarcation of plot was reached on 4.3.2011, meaning thereby that the aforesaid installment became payable on that date. If there is any delay in making payment of the aforesaid installment computed from 4.3.2011, the opposite party shall be entitled to charge agreed interest for the said delay.
The next installment was payable on casting of ground floor roof. That stage was reached on 2.6.2011. If there is any delay in payment of that installment, agreed interest can be charged by the opposite party for the period of delay.
The next installment was payable on casting of first floor roof which as per the affidavit filed by the opposite party, happened on 31.8.2011 but as per the documents filed before the State Commission it had happened on 25.12.2011. The complainant was entitled to make payment of the said installment by the date given to the State Commission, i.e., 25.12.2011. If there has been any delay beyond 25.12.2011, the opposite party shall be entitled to recover agreed interest for the period of delay.
Next installment was payable on start of brick work. The said stage reached on 27.2.2012. If there was any delay in making payment of the aforesaid installment, the opposite party will be entitled to charge agreed interest for the period of delay.
The next installment is payable on start of internal plastering. Admittedly internal plastering is yet to start. Therefore, the aforesaid installment has not become payable. Hence, the excess payments made by the complainant after adjusting the installments upto the stage of brick work will be adjusted by the opposite party.
The next installment is payable on start of flooring which admittedly has not been done. If any payment has been made by the complainant, that would be adjusted against by the opposite party.
The next installment was payable on start of internal electrification. The learned counsel for the opposite party states on instructions that internal electrification has started on 16.8.2014. The opposite party shall be entitled to adjust the surplus payment made by the complainant against this particular installment w.e.f. 16.8.2014.
The next installment is payable on start of internal plumbing which according to the opposite party has started on 14.11.2014. The internal plumbing has already started. The excess payment made by the appellant can be adjusted against this installment as well.
13. As per clause 11 of the Buyer's Agreement, the escalation in cost during the progress of the work, based on all India wholesale index for all commodities is payable by the allottee over and above the agreed sale price. The said increase may be charged by the builder with anyone or more of the installments or separately. The opposite party has filed Annexure P-2 to the affidavit filed today in the court. The said annexure shows the wholesale price index for the years 2005-2006 onwards in respect of certain commodities. However, the increase to be borne by the buyer is to be worked out based on the increase in the all India wholesale index for all commodities and not based on all India wholesale index for some specified commodities. The opposite party is, therefore, directed to work out the escalation in cost based upon the increase in the all India wholesale index for all commodities. Since as per the agreement between the parties, the construction was to be completed by 19.1.2013, the opposite party shall be entitled to claim escalation in cost based upon all India wholesale index for all commodities upto the year 2012-13.
The opposite party shall rework the escalation on account of inflation in terms of this order and convey the same to the complainant within four weeks from today. If the complainant is aggrieved from the escalation so worked out by the opposite party, he shall be entitled to avail such remedy as may be open to him as per law. The amount so worked out and the demanded by the opposite party shall be adjusted from the surplus fund if any available with the opposite party. If no surplus amount is available for such adjustment or the amount available for adjustment is less than the amount so worked out, the balance amount shall be paid by the complainant within four months of the opposite party demanding the same in writing.
14. Since the complainant has made entire amount payable in terms of the order of the State Commission, if any amount becomes refundable to him in terms of this order, that shall be paid by the opposite party within eight weeks from today. As regards the additional maintenance charges it has been agreed that the same would be demanded and paid as per the Buyer's Agreement at the time of offering possession to the complainant.
15. At the time of offering possession, the opposite party shall also give documents evidencing proof of payment/deposit of service taxes and other cess and taxes etc. recovered from the complainant.
16. The agreed penalty/compensation to the complainant w.e.f. 19.1.2013 shall be paid by the opposite party as per clause 9 of the Buyer's Agreement. Since, the penalty/compensation of Rs.15,000/- is not payable before offer of possession, no interest on such charges would be payable by the opposite party and the said penalty/compensation shall be paid by the opposite party while offering possession to the complainant.
17. In the facts and circumstances of the case, the opposite party need not pay any compensation to the complainant for the mental agony etc. but, the cost of litigation quantified by the State Commission would be payable. It is also made clear that the opposite party will offer possession to the complainant after completing the construction in all respects and obtaining the requisite Completion Certificate. Till this is done, the opposite party shall continue to pay penalty/compensation @ of Rs.15,000/- per month. The possession after completing the construction in all respects and obtaining the requisite Completion Certificate shall be offered to the complainant within six months from today as undertaken by the counsel for the opposite party on instructions from Mr. Ranjit Singh, General Manager of the opposite party.
18. Both the appeals stand disposed of in above terms.
......................J V.K. JAIN PRESIDING MEMBER