Haryana

StateCommission

A/1111/2016

MANNU BAWEJA - Complainant(s)

Versus

ANSAL PROPERTIES AND INFRASTRUCTURE LTD. - Opp.Party(s)

BHUPENDER SINGH

26 Sep 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeal No  :      1111 of 2016

Date of Institution:        22.11.2016

Date of Decision :         26.09.2017

 

1.      Mr. Mannu Baweja s/o Sh. K.R. Baweja

2.      Mrs. Santosh Baweja w/o Sh. K.R. Baweja,

Both Resident of House No.2, Devi Murti Colony, Panipat, District.  

                                      Appellants-Complainants

Versus

1.      Ansal Properties & Infrastructures Limited, through its Managing Director, 115, Ansal Bhawan, 16, Kasturba Gandhi Marg, New Delhi-110001.

2.      A.G.M. (Sales & Marketing), Sushant City, Ansal Properties & Infrastructure Limited, Panipat.

                                      Respondents-Opposite Parties

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Mr. Balbir Singh, Judicial Member.

                                                                                                         

Argued by:          Shri Bhupender Singh, Advocate for appellants.

                             Shri Ajay Ghangas, Advocate for respondents.

 

                                                   O R D E R

 

BALBIR SINGH, JUDICIAL MEMBER

 

        This complainants’ appeal is directed against the order dated October 25^th, 2016 passed by District Consumer Disputes Redressal Forum, Panipat (for short ‘the District Forum’) whereby complaint filed by complainants- Mannu Baweja and Mrs. Santosh Baweja (appellants herein) was dismissed.

2.                House No.F-2742-L having plot area 239 square yards, that is, 200 square meters, and built up area 1200 sq. ft. approximately, in the scheme called as ‘Sushant City, Panipat’ launched by Ansal Properties & Infrastructures Limited-Opposite Parties (respondents herein) was allotted to Shri Satyapal Tandon and Shri Anuj Tandon and an agreement was executed on August 27^th, 2008 (Annexure C-4) mentioning total sale price of this property as Rs.29,75,000/-. Out of the total sale price amount, 20% amount was paid at the time of booking and remaining 80% amount was to be paid by the allottees as per construction linked plan.

3.                Thereafter, on June 20^th, 2010 with the consent of the opposite parties, the allotment of this plot was transferred in the names of complainants. After making payment of the total sale price amount, conveyance-deed was executed on August 04^th, 2011. Later on the opposite parties issued a letter dated June 16^th, 2011 (Annexure C-7) mentioning revised ‘Statement of Account’ showing a debit amount of Rs.7,50,158.42 showing the super built up area as 1427.78 sq. ft instead of 1200 sq. ft. The opposite parties claimed an amount of Rs.2,27,780/- more due to increase in built up area. Showing increase of 20 sq. mtrs in the plot area, the opposite parties also claimed an amount of Rs.2,04,550/- from the complainant. At the time of delivery of possession, an amount of Rs.2,97,500/- was actually due towards the complainants being 10% of the total sale price amount. In this way, the opposite parties claimed an amount of Rs.9,75,364.42 and the complainants made payment of the amount under pressure as without payment, the opposite parties were not willing to execute the conveyance-deed in favour of the complainants. Moreover, the complainants were also under pressure as they were required to pay holding charges also at the rate of Rs.5/- per sq. ft per month if they are not able to obtain possession of the plot as and when offer made by the opposite parties.

4.                In fact, there was no increase in the super built up area. In this way, the complainants had to pay an amount of Rs.2,27,780/- plus an amount of Rs.34,144.42 as service tax on account of showing increase in super built up area and also had to pay an amount of Rs.2,05,712/- on account of increase in area of the plot in excess un-necessarily. The complainants have prayed that the opposite parties be directed to refund an amount of Rs.2,33,645/- received by the opposite parties showing increase in super built up area; an amount of Rs.40,000/- on account of difference of rates of 20 sq. mtrs increased area and an amount of Rs.29,532/- spent for stamp duty and registration of the property with interest at the rate of 18% per annum. The opposite parties also be directed to pay to the complainants an amount of Rs.2.00 lacs as compensation on account of un-necessary harassment and mental agony and an amount of Rs.11,000/- as litigation expenses.

5.                The opposite parties-respondents in their written version have taken plea that the complaint is bad for non-joinder of necessary parties; that the complaint is not maintainable in the present form and that the complaint is barred by limitation. The opposite parties have taken plea that as per the terms and conditions of the agreement, the opposite parties could change the super built up area and the complainants are liable to pay the amount of super built up area to the opposite parties. The super built up area was mentioned in the agreement as 1200 sq. ft approximately and it was subject to the additions or alterations. The conveyance-deed has already been executed with the consent of the complainants and the complainants did not raise any objection regarding claim of excess amount from him by the opposite parties. At the time of execution of the conveyance-deed, the complainants also did not raise any dispute regarding increase in plot area as well as super built up area of the villa. It is admitted fact that the complainants are subsequent allottees of the built up house No.F-2742-L and after execution of the conveyance-deed, they have become owners in possession of the same. After completion of development work, final notice was issued to the complainant for taking possession of the Villa in question and the super area had already been revised. It is denied that the complainants made payment of the amount under compelling circumstances. The opposite parties have prayed that the complaint filed by the complainant be dismissed with cost.

6.                The parties adduced evidence in support of their respective claims before the District Forum.

7.                After hearing arguments, vide impugned order dated October 25^th, 2016 the complaint filed by the complainants was dismissed.

8.                Aggrieved with the impugned order dated October 25^th, 2016 passed by the learned District Forum, the complainants/appellants have filed the instant appeal bearing No.1111 of 2016 with a prayer to set aside the impugned order and to grant relief to the complainants as prayed in the complaint.

9.                We have heard learned counsel for the parties and have perused the case file.

10.              During the course of arguments, there was no controversy of any type that plot bearing No.F-2742-L having plot area measuring 200 sq. mtrs and super built up area of 1200 sq. mtrs approximately under the scheme called as ‘Sushant City, Panipat’ was allotted to Shri Satya Pal Tandon and Shri Anuj Tandon and an agreement (Annexure C-4) was executed on August 27^th, 2008. It is also admitted fact that allotment of this Villa No.F-2742-L was transferred in the name of complainants-Mannu Baweja and Mrs. Santosh Baweja on June 16^th, 2010 with the consent of the opposite parties on the same terms and conditions as mentioned in the agreement (Annexure C-4). The total sale price of this villa after completion of construction was Rs.29,75,000/-. It is admitted fact that 90% of the total sale price was paid by the complainants and earlier allottees well in time as per construction linked plan. The remaining 10% amount was to be paid at the time of offer of possession as per terms and conditions of the agreement. Problem arose when letter offering possession of this villa was issued to the complainants. At that time, the opposite parties required the complainants to deposit total amount of Rs.9,75,364.42 instead of 2,97,500/- being 10% of the total sale price amount. The opposite parties claimed extra amount of Rs.2,33,645/- on account of increase in super built up area measuring 227.8 sq. ft as Rs.2,27,780/- plus an amount of Rs.5865/- as service tax. An amount of Rs.2,04,550/- was to be spent for purchasing stamp papers and registration expenses. An amount of Rs.20,000/- in the shape of security and an amount of Rs.2,05,712/- was claimed on account of increase of 20 sq. mtrs in plot area.  

11.              During the course of arguments, there was no controversy in this regard that as per terms and conditions of the agreement, the opposite parties can increase or decrease total plot area as well as super built up area as per Clause 2 of the terms and conditions mentioned in the buyer’s agreement. Version of the complainant also is that the opposite parties can claim sale price amount of the increased plot area but the opposite parties have received an amount of Rs.48,000/- in excess from the complainant. In this way, the complainant is entitled for refund of an amount of Rs.48,000/- which was received in excess. During the course of arguments, learned counsel for the complainants could not convince that any amount has been received in excess from the complainants, rather, it is found that the opposite parties have received an amount of Rs.2,05,712/- on account of increase of 20 sq. mtrs in the plot area. So, findings are given that payment of an amount of Rs.2,05,712/- by the complainant is justified and no excess amount has been claimed from the complainants. So, the complainants are not entitled to received an amount of Rs.48,000/- as prayed in the complaint. 

12.              The complainants spent total amount of Rs.2,04,500/- for purchasing stamp duty and registration charges. Version of the complainants is that they had to spend an amount of Rs.29,532/- in excess on account of claiming excess sale price of the increased plot area and super built up area. Version of the complainants is that they are entitled for refund of excess amount spent by them Rs.29,532/- for purchasing stamp duty and registration charges. We want to make it clear at the very outset that out of the total amount, the amount spent for purchasing stamp duty and registration charges cannot be refunded back to the complainants as that amount in fact has not been received by the opposite parties. The amount spent for registration of the conveyance-deed has been deposited in the government treasury. We feel if the complainants were willing to save extra amount spent for registration charges, they should have raised objection at the time of execution of the conveyance-deed, and rather conveyance-deed should have been executed after settlement of account. We feel no order can be passed for refund of an amount of Rs.29,532/- spent at the time of registration of the stamp duty.

13.              Now main controversy remains regarding claim of the complainants regarding refund of an amount of Rs.2,33,645/- on account of increase in super built up area. Version of the complainant is that in fact there is in increase in  super built up area and the super built up area is the same as mentioned in the agreement and the complainants were not liable to pay the above mentioned amount of Rs.2,33,645/-.  On the other side, version of the opposite parties is that due to increase in plot area, the super built up area was also increased accordingly. The complainants have placed on the file copy of an order passed by the learned District Forum on August 29^th, 2013 while deciding Complaint No.44 of 2012 titled as “Uman Paul Singh and another vs. Ansal Properties & Infrastructure Limited and another”. Facts of that case are similar to the facts of the case in hand. In that case, the opposite parties were directed to refund an amount of Rs.2,27,780/- already paid by the allottees. First Appeal No.725 dated 11.10.2013 was filed against that order by the opposite parties before the State Commission. In that case, findings were given that the increased super built up area was 44.3 sq. ft. and not 227.78 sq. ft. Findings were given that the opposite parties shall refund the excess amount received from the complainant considering total increase in super built up area as 44.3 sq. ft. So, it is clear that findings given by the learned District Forum in that case were not affirmed by the State Commission. Moreover, State Commission has given findings regarding increase in super built up area of the Villa on the basis of the report called from the Town and Country Planning Department after measurement of the super built up area. In this case, the complainants did not prefer to get the super built up area measured again through Town and Country Planning Department or by any other competent authority. During the course of arguments, learned counsel for the opposite parties also argued that in fact area covered under balcony, mumty, lift and staircase etc. is also included in the super built up area of a flat or a Villa.

14.              Keeping in mind all these circumstances, on the basis of the record on the file, certainly findings cannot be given that super built up area of the Villa is less than 1427.78 sq. ft. In these circumstances, the payment of an amount of Rs.2,33,645/- to the opposite parties by the complainant including service tax on account of increase in super built up area was justified. The complainants are not entitled for refund of the above mentioned amount.

15.              As per discussions above in detail, findings can be safely given that the opposite parties have not claimed excess amount as prayed in the complaint from the complainants. The opposite parties have received the amount before execution of the conveyance-deed which became due towards the complainants after increase in plot area as well as super built up area of the Villa. We find no illegality and invalidity in the findings given by the learned District Forum in this regard. Resultantly, findings of the District Forum stand affirmed and the appeal stands dismissed.

 

Announced: 26.09.2017

(Balbir Singh) Judicial Member

(Nawab Singh) President

 

CL