Punjab

Ludhiana

CC/20/155

Parveen Kumar - Complainant(s)

Versus

AIPL Husing & Urban Infra Ltd - Opp.Party(s)

G.S.Sandhar

08 Nov 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                             Consumer Complaint No: 155 dated 21.08.2020.

                             Date of decision: 08.11.2024. 

 

Parveen Kumar S/o. Ved Parkash, R/o. H. No.262, Brahampuri Mohalla, Khanna, Tehsil Khanna, Distt. Ludhiana at present H. No.194, Narotam Nagar, Khanna. Mob. 98784-24603.                                                                                                                                                           ..…Complainant

                                                Versus

1. AIPL Housing and Urban Infrastructure Limited, 232-B, Fourth Floor, Okhla Industrial Estate, Phase-III, New Delhi-110020 through its Managing Director.
2. Inderpreet Singh, Project Manager (Springfields) at Dream City, G.T. Road, Khanna, Distt. Khanna. Mob.98783-00813.
3. Mr. Vinod Aggarwal, Senior Customer Relationship Manager, C/o. The Master Piece, Golf Course Road, Sector 54, Gurgaon, Haryana-122002. Mo. No.98183-78686.                                                                                                                                                        …..Opposite parties 

Complaint Under Section 35 of Consumer Protection Act 2019 to deliver the possession of flat no.226A-SF and for compensation/costs for the deficiency in services of the respondents.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. G.S. Sandher, Advocate.

For OP1                         :         Sh. N.S. Rana, Advocate.

For OP2 and OP3          :         Exparte.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                In brief, the facts of the case are that the complainant is working as Area Sales Manager in private sector and is living in rental premises at Khanna. As such, in order to get his own house, in November 2018, the complainant applied for ready to move flat having unit number/flat No.226A-SF to be constructed by OP1 in Springfield at Dream City, Khanna.  The total cost of the flat was Rs.22,00,000/- including all applicable charges till possession and OP1 received Rs.1,80,000/- from the complainant through cheque No.005890 dated 01.11.2018 drawn on Bank of India encashed on 14.12.2018. Thereafter, in February 2019, the OP executed an agreement for allotment of said unit in favour of the complainant. The complainant stated that he paid the basic payment from his own pocket and remaining amount was to be paid after getting loan from the bank. The complainant raised loan of Rs.20,00,000/- from HDFC Bank, Khanna branch vide offer dated 28.12.2018. The construction work of the said unit was done but minor sanitary fittings remained due and as such, the OPs issued letter dated 06.02.2019 to the complainant raising a demand of Rs.25,65,628/- and after deducting the advance payment of Rs.1,80,000/- demanded to remit the balance amount of Rs.23,85,628/- before getting the possession of the flat. The complainant further stated that he shocked to know that the OP charged Rs.2,64,000/- as tax on basic sale price (GST), Rs.60,000/- as power backup charges, Rs.9600/- as maintenance charges for 24 months along with tax on maintenance charges i.e. Rs.1728/-, except the OPs claimed tax on power backup charges as Rs.10,800/-. According to the complainant, as per the provision of law no such taxes are applicable qua the said unit as the flat in question comes under the category of “Affordable Flat”, as per PMYSC as well as being under the category of ready to move no tax/GST can be charged against the payment of sale consideration of amount of the flat in question but OP1  illegally charged the amount of Rs.2,64,000/- on the basic price of Rs.22,00,000/- @12% per annum. After receipt of said letter, the complainant approached and requested the OPs to receive the amount as already settled between them but the OPs did not give any proper reply and lingered on the process to deliver the possession to him. Further the complainant sent Emails dated 20.02.2019, 13.03.2019 and 19.12.2019 to the OPs with request to waive the illegal charges levied by them but did not give any reply to said Emails and even failed to deliver the possession of the flat to the complainant due to which the complainant had to pay rent of Rs.7000/- per month from 01.01.2019 to 30.01.2020 to his landlord Mr. Sanjay Goyal. The complainant further stated that another rent note dated 27.01.2020 for taking the premises on rent by him for his family from 01.02.2020 to 01.01.2021 @ Rs.7500/- per month except consumption of electricity charges was entered. The complainant claimed to have suffered mental pain, agony and monitory loss due to demand of illegal charges by the OPs without any legal logic which amounts to deficiency in service for which the OPs are liable to pay compensation to the complainant. In the end, the complainant prayed for issuing direction to the OPs to deliver flat/unit No.226-A-SF in project “Springfield” at Dream City, Khanna, District Ludhiana after receipt of settled amount of Rs.22,00,000/- from him. The complainant further prayed for issuing direction to the OPs to pay Rs.2,30,000/- including Rs.1,00,000/- paid as rent, compensation of Rs.1,00,000/- and litigation expenses of Rs.30,000/-.

2.                Initially, notice was sent to the OPs through registered post but the none turned up on behalf of the OPs despite service and as such, the OPs were proceeded against exparte vide order dated 08.09.2021.     

                   However, Sh. N.S. Rana, Advocate appeared and filed application for setting aside the exparte order dated 08.09.2021 against OP1, which was disposed of vide order dated 10.02.2023 by setting aside the exparte order dated 08.09.2021 against OP1 subject to payment of costs of Rs.2000/-.

3.                Thereafter, OP1 filed written statement and by taking preliminary objections assailed the complaint on the grounds of maintainability of complaint; the complainant has not approached with clean hands; suppression of material facts; the complaint being false and frivolous one etc. OP1 stated that there is an Arbitration clause No.21 in the application Form, which is reproduced as under:-

"ARBITRATION

a) All disputes or differences arising out of, in connection with or in relation to this transaction, shall be mutually discussed and settled by the company and the allottee(s).

b) All the disputes or differences arising out of, in connection with or in relation to this transaction, if not settled amicably, shall be referred to sole arbitrator, appointed by the Managing Director of the company in accordance with the provisions of the Arbitration and Conciliation Act 1996. The decision of the Arbitrator shall be final and binding upon the parties.

c) The venue of arbitration shall be Khanna and the language for the Arbitration proceedings shall be English only."

 

OP1 further stated that on 16.01.2019, Flat No. 226A-SF was allotted to the complainant, who had signed the application form and deposited a sum of Rs.1,80,000/-. As per the terms and conditions of the application form, the opposite party had sent the payment schedule and details of charges in accordance with the company's policy. However, the complainant raised certain grievances regarding power backup charges and GST vide Email dated 20.02.2019 and further stated that if the demands continue to be raised, he is not willing to purchase the property. The complainant was duly informed that the electricity charges were payable as per clause 12 of the application form and GST is also accordance with government policy. Despite this, the complainant insisted on a refund of the amount deposited. In response, the answering opposite party issued a cheque bearing no. 001649 dated 18.12.2021 for Rs.1,80,000/-, which the complainant refused to receive. Thereafter the unit in question was cancelled and subsequently, the unit was allotted to another customer in accordance with the company's policy and standard procedures. Thereafter, the complainant filed a police complaint against the officials of the opposite party, but the police determined that the matter was civil in nature and no police action was required. The complainant has concealed this fact in his complaint.

                    On merits, OP1 reiterated the facts mentioned in the preliminary objections. OP1 has denied that there is any deficiency of service and has also prayed for dismissal of the complaint.

4.                In evidence, the complainant tendered his affidavit as Ex. CA and reiterated the averments made in the complaint. The complainant also placed on record the documents Ex. P1 to Ex. P16 and closed the evidence.

5.                On the other hand, the counsel for OP1 submitted affidavit Ex. RA of Sh. Sumiti Arora, Manager/Authorized Signatory of OP1 along with document Ex. R1 to Ex. R6 and closed the evidence.

6.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written statement along with affidavit and documents produced on record by both the parties.

7.                The complainant moved an application Ex. R2 and got himself registered for the allotment of a ready to move flat situated in “Springfields” at Dream City, Gobindgarh, Khanna, Punjab with the OPs and in response to the said application, a flat No.226-A-SF was allotted to the complainant for a basic sale consideration of Rs.22,00,000/- (excluding other mandatory charges mentioned in the payment schedule) under the “Down payment plan” opted by the complainant. The “General Terms and Conditions” accompanying the application form, provided procedure for allotment  and withdrawal of application. It was also stipulated that it is a construction inked payment plan and it further provided a schedule for payment of allotment money/installment and other dues. Stipulation qua possession specifically mandated that the company shall handover the possession within 24 months/2 years from the date of allotment subject to timely payment by the allottees along with dues including stamp duty and registration charges. Further, in case of default in payment, the physical possession of the independent floor shall be with-held. The OP Company also undertook to pay compensation of Rs.3/- per square feet per month till handing over of the possession in case the company fails to deliver the possession within stipulated time. Conversely, the allottee was also obligated to pay “Holding Charges” @ Rs.3/- per square feet per month in case he fails or neglects to take possession offered by the OP Company. The General Terms and Conditions also provided details with regard to payment of maintenance charges, electricity as well as water supply charges etc. The OP acknowledged the receipt of payment vide receipt Ex P1 dated 13.12.2018.

8.                On 06.02.2019, the OPs sent three page letter Ex. P4 = Ex. R3 to the complainant proposing to hand over possession within the stipulated time and the complainant was called upon to fulfill the “Pre-Inspection Formalities” along with payment of sum of Rs.23,85,628/- as detailed in statement of account. However, the complainant while acknowledging the receipt of letter, raised queries vide Emails Ex. P6 = Ex. R5. The operative part of Ex. P6 = Ex. R5 is reproduced as under:-

“I have received documents of unit No.226A-SF of project “Springfields” at Dream City, Khanna, Punjab on dated 16.02.2019, My Application no.is DCK-SFF-029.

I have some queries in my Statement of Account.

1. You have charged Rs.60000/- plus tax Rs.10800/- for Power backup of 2 KW, but I don’t want the 2 KW power backup, I can use 0.75 KW load which is not chargeable.
2. Tax on the basic sales price:-

As per Government rule Tax is applicable only on under construction properties 6% on building 6% on purchaser and 6% rebate by Gov, but you charged 12% tax to me on BSP of Rs.2200000/- Total Rs.264000/-.

I have purchased ready to move in property so as per Government rule para 5(b) of Schedule II of CGST Act 2017 tax is not applicable on ready to move in property, please consider this otherwise I am not ready to purchase this property, and you have to refund all my payments within a month with eligible interest.

3. You have given Permission to Mortgage latter but over phone you said that you don’t have clearance of this property it is not good thing for AIPL.”

 

Thereafter, the complainant sent Emails dated 19.12.2019 Ex. P7, 13.03.2019 Ex. P8, 20.02.2019 Ex. P9 but the OPs did not respond the Emails and a stalemate persisted between the parties. Ultimately, on 31.03.2021 vide sale deed Ex. P15, the OPs, sold the flat to another purchaser namely Sh. Ved Parkash Singh and Mrs. Dipti Kumari.

9.                The first and foremost point for consideration arises before this Commission whether the complainant is entitled for delivery and possession of the plot No.226-A-SF originally allotted to the complainant?

10.              Admittedly, the complainant has paid an amount of Rs.1,80,000/- only till today and despite having sanctioned loan of Rs.20,00,000/-, he did not pay any single penny to the OPs as per schedule of payment. Rather vide Email Ex. P6 and Ex. P7 he clearly stated that in case his queries are not responded favourably, then he is not ready to purchase the property and the OPs shall have to refund the payment along with interest within one month. So it is evident that the offer of possession was declined by the complainant himself and there was no consensus-ad-idem between the parties with regard to terms and conditions.  It appears that the complainant had been sending Emails at regular intervals selectively with an intention to keep his claim alive. As such, the act and conduct of the complainant lacks bonafide and he is not entitled to equitable relief of re-allotment and delivery of the flat originally allotted to him. However, in the given set of circumstances, this Commission is of the view that the complainant is entitled to refund of the initial payment of Rs.1,80,000/- along with interest and compensation. The amount of compensation can be determined by taking into facts and circumstances of each case and also mitigating circumstances that may arise in favour of the opposite party as well. Reference can be made to 2020(3) Apex Court Judgments 27 (S.C.) in DLF Home Developers ltd. (Earlier known as DLF Universal Ltd.) & another Vs Capital Green Flat Buyers Association Etc.

                   Considering the aforesaid facts and circumstances, it would be just and appropriate if the OPs are directed to refund the amount Rs.1,80,000/- (the amount deposited by the complainant with the OP vide receipts Ex. P1)  along with interest @9% per annum w.e.f. 31.03.2021 i.e. execution of sale deed Ex. P15 till its actual payment within 30 days from the date of receipt of copy of order, failing which the OP shall pay an additional interest @3% per annum on the said amount. The interest paid on the amount shall be considered as composite compensation.

11.              As a result of above discussion, the complaint is partly allowed with an order to the OP to refund the amount Rs.1,80,000/- (the amount deposited by the complainant with the OP vide receipts Ex. P1)  along with interest @9% per annum w.e.f. 31.03.2021 i.e. execution of sale deed Ex. P15 till its actual payment within 30 days from the date of receipt of copy of order, failing which the OP shall pay an additional interest @3% per annum on the said amount. The interest paid on the amount shall be considered as composite comepnsation. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

12.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)                        (Sanjeev Batra)

Member                                       President        

 

Announced in Open Commission.

Dated:08.11.2024.

Gobind Ram.