JUDGEMENT

(PER MR. JUSTICE RAM SURAT RAM (MAURYA), PRESIDING MEMBER

1.      Heard Mr. S.K. Pattjoshi, Senior Advocate, assisted by Mr. Om Prakash, Advocate, for the complainant and Ms. Sushma Singh, Advocate, for the opposite party. 

2.      Dharmendra Sharma has filed above complaint for setting aside the demands dated 04.02.2014, 17.01.2018 and 23.09.2019 raised by the opposite party and for directing the opposite party to refund (i) Rs.5654000/- with interest @19.5% per annum from 01.04.2012 till the date of refund; (ii) Rs.399100/- with interest @19.5% per annum from 15.02.2014 till the date of refund; (iii) Rs.343178/- with interest from 01.06.2019 till the date of refund; (iv) pay Rs.20000/- per month from 01.04.2012, till the date of refund of above amount as loss of rent: (v) pay Rs.360000/-, as loss of Income tax rebate: (vi) pay Rs.700000/- as compensation for mental agony and harassment; (vii) reimburse the amount of penalty charged by State Bank of India, for not submitting title deed, for loan granted by it; and (viii) any other relief which is deemed fit and proper in the facts and circumstances of the case.

3.      The complainant stated that Agra Development Authority (the opposite party) was a statutory authority, constituted under the U.P. Urban Planning and Development Act, 1973 and engaged in the development and construction of group housing project, within the limit of urban agglomeration of Agra. The opposite party launched a group housing project of different categories in the name of “ADA Heights, Taj Nagari Phase-II” at Fatehabad Road (near Taj Expressway), Ring Road, Agra, in the year, 2011 and made wide publicity of its amenities and facilities. Applications were invited from general public for allotment, giving last dated as 31.07.2011. The complainant applied for allotment of residential flat in category Super Deluxe-2 and deposited booking amount of Rs.460000/- on 28.07.2011. Allotment was done by lottery system on 29.08.2011, in which, the complainant was allotted Flat No.DT-1/1204. The opposite party, vide letter dated 19.09.2011, informed the complainant that he was allotted Flat No.DT-1/1204, for tentative price of Rs.5654000/- and asked to deposit Rs.953500/- till 20.10.2011 and balance amount with interest was payable in 24 equal quarterly instalments. The complainant, through letter dated 21.10.2011, opted for full payment and attached cheque No.598445 dated 20.10.2011 of Rs.6.94 lacs and Rs.45 lacs by LICHFL, as the opposite party had advertised for possession within six months. The complainant, vide letter dated 03.04.2012, asked for possession of the flat as he had made upfront payment of full amount. The opposite party, vide letter dated 04.02.2014, demanded Rs.84300/- in the head of solar system, Rs.46878/- as lease premium and Rs.212000/- for covered car parking (total Rs.343178), non-judicial stamp for execution of deed, other papers and offered possession. The complainant visited the office of the opposite party on 15.02.2014 with non-judicial stamp and other papers for execution of deed and raised objection in respect of demand. The complainant visited the site on 15.02.2014 and found various deficiencies in construction of the flat, which were got noted to Assistant Engineer (Property), with request to remind for possession after making good the deficiencies and asked for ‘completion certificate’ and other documents. The opposite party wrote reminders dated 22.09.2014 and 20/21.11.2014 for Rs.382748/- and non-judicial stamp for execution of deed, other papers and for taking possession, although stamp and other papers had already been deposited on 15.02.2014. The complainant, vide letter dated 09.01.2015 again demanded ‘completion certificate’. The opposite party again wrote a letter dated 17.01.2018 for Rs.611575/- as balance amount and Rs.343178/- for non-judicial stamp for execution of deed, other papers and for taking possession. The complainant vide letter dated 02.04.2018, requested for waiver of interest on balance and confirming that the flat was ready for physical possession. The complainant vide letter dated 04.06.2019, sent a cheque No.786128 dated 01.06.2019 of Rs.343178/- and requested to confirm the date of possession. The opposite party encashed the cheque but did not inform the date for handing over possession. State Bank of India wrote letters dated 14.03.2017, 25.06.2019 and 19.10.2019, demanding the title deed of the flat with warning that if it is not deposited then penal interest @2% per annum would be levied. The complainant gave reminder 18.09.2019, for waiver of interest on balance and confirming that the flat was ready for physical possession. The complainant visited the office of the opposite party on 23.11.2019 but the opposite party did not provide ‘completion certificate’, Fire Fighting Clearance Certificate. The complainant also visited the site and found that the flat was not in habitable condition. The opposite party raised another building without consent of the buyer and thereby reduced green area and also restricted common amenities and facilities and thereby committed unfair trade practice. The opposite party was obligated to handover possession till 19.03.2012 of the flat complete in all respect but the opposite party had neither completed the construction as per specification nor offered possession. The opposite party had been insisting to take possession of the flat with deficient construction. On these allegations the complaint was filed on 10.07.2020, alleging deficiency in service as well as unfair trade on the part of the opposite party.       

4.      The opposite party has filed its written reply on 15.02.2021, in which, booking of the flat, allotment of the flat and the deposits of Rs.460000/- on 28.07.2011, Rs.694000/- on 25.10.2011, Rs.4500000/- on 31.10.2011 and Rs.343178/- on 20.06.2019 by the complainant, have not been disputed. The opposite party stated that the construction was completed and the complainant was offered possession vide letter dated 04.02.2014, with demand of Rs.84300/- in the head of solar system, Rs.46878/- as lease premium and Rs.212000/- for covered car parking (total Rs.343178), non-judicial stamp for execution of deed, other papers. The complainant deposited non-judicial stamp worth Rs.399100/- on 15.02.2014 did not deposit other demanded amount. The opposite party gave reminders dated 22.09.2014, 20/21.11.2014 and 17.01.2018. The complainant vide letter dated 02.04.2018, requested to waive interest on balance amount and vide letter dated 04.06.2019, sent a cheque No.786128 dated 01.06.2019 of Rs.343178/-, which was encashed on 20.06.2019 and adjusted in balance dues. Rs.471159.28 was still due as on 05.02.2021. As per rule, interest/penal interest was payable for delayed payment and the opposite party had no authority to waive the interest. In allotment letter dated 19.09.2011, tentative price of Rs.5654000/- was mentioned. Under clause-45 of Registration and Allotment Rules, it has been mentioned that the price can be increased up to 10%. In the letter dated 04.02.2014, Rs.84300/- in the head of solar system, Rs.46878/- as lease premium (as per clause-12 of Registration and Allotment Rules) and Rs.212000/- for covered car parking (total Rs.343178), non-judicial stamp for execution of deed were demanded, which were apart from the cost of the flat and not its increased cost. The complainant is avoiding payment of above amount since February, 2014. Under clause-32 of Registration and Allotment Rules, the complainant is liable to pay watchman charges @Rs.250/- per month after offer of possession. Under clause-27 of Registration and Allotment Rules, two years period for delivery of possession was given and possession was offered within two years of allotment. Cause of action for refund accrued to the complainant on the date of service of letter dated 04.02.2014, while the complaint was filed on 10.07.2020 and is barred by limitation.as provided under Section 24-A of the Consumer Protection Act, 1986. “ADA Height” consists of 582 flats, apart from 20 allottees, other allottees have taken possession well within time. The complainant has made total payment of Rs.5997178/- and the complaint does not fall within pecuniary limit of this Commission. The complaint is liable to be dismissed. 

5.      The complainant filed Rejoinder Reply, Affidavit of Evidence of Dharmendra Sharma and documentary evidence. The opposite party filed Affidavit of Evidence, Affidavit of Admission/Denial of documents of Somkamal Sitaram and documentary evidence. Both the parties have filed written synopsis.    

6.      We have considered the arguments of the parties and examined the record. Preliminary issues raised by the opposite party, have no force. Under Section 21 of the Consumer Protection Act, 1986 National Commission has jurisdiction to entertain a complaint where value of the goods together with compensation claimed exceed Rs.one crore. In the present case, value of the service and compensation claimed in the complaint exceeds Rs.one crore. So far as limitation for refund is concerned, cause of action arose on service of letter dated 04.02.2014. However, the opposite party gave reminders dated 22.09.2014, 21.11.2014 and 17.01.2018 and accepted Rs.343178/- on 20.06.2019. As such limitation got extended under Section 18 and 19 of Limitation Act, 1963. The complaint was filed on 10.07.2020 cannot be said as time barred.  

7.      The complaint has been filed on the allegation that the opposite party illegally made extra demand in the letter dated 04.02.2014. In allotment letter dated 19.09.2011, tentative price of Rs.5654000/- was mentioned. Under clause-45 of Registration and Allotment Rules, it has been mentioned that the price can be increased up to 10%. In the letter dated 04.02.2014, Rs.84300/- in the head of solar system, Rs.46878/- as lease premium (as per clause-12 of Registration and Allotment Rules) and Rs.212000/- for covered car parking (total Rs.343178), non-judicial stamp for execution of deed were demanded, These demands were apart from the cost of the flat and not its increased cost. In any case it was within 10% of the original price. As such demand cannot be said as illegal.

8.      So far as allegation relating to delay in possession is concerned, in brochure, “possession within six months” has been mentioned. Under clause-27 of Registration and Allotment Rules, the allottee can seek refund if delivery of possession was delayed for two years. Possession was offered within two years of allotment as such on the ground of delay, refund cannot be claimed.

9.      After letter dated 04.02.2014, the complainant deposited non-judicial stamp worth Rs.399100/- on 15.02.2014 but did not deposit other demanded amount and told that balance amount would be deposited after taking loan from LIC Housing Finance Corporation. Thereafter, through letter dated 09.01.2015, demanded for ‘completion certificate’ and letter dated 02.04.2018, requested for waiver of the interest on balance amount. From which it is proved that the complainant was avoiding payment of balance amount on one or other ground. The complainant has committed breach of contract as such he will not be entitled for interest till filing of the complaint.

10.    So far as allegation in respect of deficiency in construction is concerned, the complainant in his letter dated 09.01.2015 has made allegation that the construction in the floor on which the flat of the complainant is situated is going on. There is no other allegation in respect of construction in his flat. During pendency of this complaint, the complainant has never tried to obtain any spot inspection report through a Commissioner. If any residential flat remains closed for more than six years then its look may not be so good as is required. Therefore, the allegation in respect of deficiency in construction is not liable to be accepted.

 O R D E R

In view of the aforesaid discussion, the complaint is partly allowed. The opposite party is directed to refund entire amount deposited by the complainant (except non-judicial stamp worth Rs.399100/- deposited on 15.02.2014) with interest @9% per annum from 11.07.2020 till the date of refund, within a period of two months from the date of this judgment.