BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)

                                  Consumer Complaint No.286 of 2015

                                 Date of institution:          10.06.2015

                                             Date of Decision:            17.12.2015

Saneh Lata Sood w/o Shri Jitender Mohan Sood resident of # 19, Sector 18, Panchkula, presently residing at House No.333, Sector 15, Panchkula.

                                     ……..Complainant

                                        Versus

M/s. Barnala Builders and Property Consultants, SCO-1, Opposite Yes Bank, Zirakpur-Patiala Road, Zirakpur, SAS Nagar, Mohali.

                                                                ………. Opposite Party

Complaint under Section 12 of the

Consumer Protection Act, 1986.

CORAM

Mrs. Madhu. P. Singh, President.

Shri Amrinder Singh Sidhu, Member

Mrs. R.K. Aulakh, Member.

Present:    Shri Deep Singh, counsel for the complainant.

Shri Ambrish Sharma, counsel for the OP.

(Mrs. Madhu P. Singh, President)

ORDER

                The complainant has filed the present complaint seeking following direction to the Opposite Party (for short ‘the OP’) to:

(a)    to withdraw the demand of interest of Rs.3,26,603/-, maintenance charges of Rs.1,14,048/- and other penalties which may be put in future by the OP.

(b)    pay her compensation of Rs.1,00,000/- for deficiency in service and mental harassment.

(c)    to pay her interest on the paid amount from April, 2014 till date.

        (d)    pay her Rs.20,000/- as litigation expenses.

                The case of the complainant that she applied for residential flat at Maya Garden, Zirakpur on 16.06.2011 by paying Rs.1,00,000/- as booking amount vide receipt dated 09.07.2011. Accordingly, the OP allotted flat/apartment No.604 measuring 1152 sq. ft. in C-1 Block vide allotment letter dated 09.07.2011. As mentioned in the allotment letter, the date of possession was in April, 2014. It was also mentioned in the allotment letter that completion of the project 10% of BSP + Parking charges + Stamp Duty + any other charges will be charged.  It was not clearly mentioned that maintenance charges for three years in advance @ Rs.2.50 per sq. ft. per month will be charged.  The complainant opted for two BHK residential flat and paid the booking amount of Rs.1,00,000/- on 16.06.2011. As per the annexure-I attached with the offer/allotment letter the total value of the flat was Rs.31,10,400/-. The complainant opted for Plan ‘B’ for payment of the apartment. Accordingly, the complainant paid Rs.3,66,560/- to the OP on 18.06.2011 being 15% payment which was to be made within 30 days from the booking.  On demand from the OP vide letter dated 28.11.2011 the complainant made payment of Rs.3,66,560/-  and Rs.1,00,000/- vide cheques dated 24.01.2012. Thereafter the complainant kept on making the payments and the last payment of Rs.4,66,560/- was made by the complainant on 15.12.2013.  At the time of booking the OP assured to hand over the possession in April, 2014 and further assured that basic facilities like water, electricity lifts etc. would be provided and the project would be totally completed before handing over the apartment to the complainant.  The complainant received letter dated 19.03.2014 from the OP vide which amount of Rs.86,500/- as service tax and Rs.3,26,583/- as interest was demanded. The complainant vide letter dated 30.03.2014 sought details of the interest and its mode of calculation.  However, the OP never bothered to reply to the letter.  The complainant visited the site and found that lot of work was pending in the apartment and the lift in the building was not installed.  The complainant vide letter dated 18.04.2014 gave the  details of the payment which he has made to the OP and sought interest from the OP on these payments. The OP vide letter dated 22.02.2015 demanded payment of Rs.3,11,160/- as cost of the flat, Rs.3,26,603/- as interest, Rs.96,111/- towards service tax and one time maintenance charges of Rs.1,14,048/- (for three years + three years free).  The OP charged maintenance @ Rs.2.50 per sq. ft. per month which was very high.  On receipt of this letter, the complainant visited the site and found that lot of work was pending in the apartment. There was no information regarding water and electricity and other amenities in the project.  The flat was not ready to move as the lifts were not in working condition. The complainant sent letter dated 05.03.2015 offering to pay the balance payment at the time of possession and asked the OP to withdraw the demand of interest as all the payments were made by the complainant as and when demanded. The demand of maintenance charges for three years is also unfair.  Thus, with these allegations the complainant has filed the present complaint.

 2.             The OP in the preliminary objections of the written statement have pleaded that the dispute in the complaint does not cover within the definition of service as he has raised the dispute regarding settlement of account which is a business to business dispute and not business to consumer dispute. The interest demanded by the OP on delayed payment is part of pricing policy of the OP and this Forum has no jurisdiction to decide the issue of pricing policy. The complainant has indulged into ‘Supresso Veri’ and ‘Sugestio Falsi’ and has not approached the Forum with clean hands. The complainant has concealed the material facts from this Forum.  On merits, it is pleaded that the complainant had booked the flat after going through all the documents and terms and conditions. The complainant was intimated about the charging of maintenance charges and other applicable charges in advance.  The OP is charging maintenance charges only for first three years but providing the maintenance service for six years.  There was no delay in start of construction of housing project or Block C-1.  Initially the  time for completion of project was fixed April, 2014 but due to delay in making payment by the complainant and other customers the final date for completion of housing was fixed as November, 2014.  On 10.11.2014 the OP started giving possession of the flats in the project. There are approximately 1600 flats in the project. The OP on 22.02.2015 the OP issued the offer of possession to the allottee including the complainant in Block C-1.  The neighbor of the complainant i.e. allottee of Flat No.601, 602, 603 in Block C-1 had also taken over the possession of their flats.  The complainant was defaulter and not ready to pay the balance cost of the flat in accordance to payment plan.  The OP sent so many demand notices  vide which the OP demanded interest on delayed payments. The OP issued offer of possession to the complainant on 22.02.2015. The OP has fulfilled all the commitments and did not overcharge the complainant in any manner.   Denying the deficiency in service and unfair trade practice on its part, the OP has sought dismissal of the complaint.

3.             To succeed in the complaint, the complainant proved on record affidavit Ex.CW-1/1 and tendered in evidence documents Ex.C-1 to C-15.

4.             Evidence of the OP consists of affidavit of Sandeep Bansal, its Manager Ex.OP-1/1 and copies of documents Ex.OP-1 to Ex.OP-7.

5.             We have heard learned counsel for the parties and have also gone through written arguments filed by them.

6.             The complainant is allottee of flat/apartment No.604 measuring 1152 sq. ft. in C-1 Block vide allotment letter dated 09.07.2011 in the scheme/project of the OP at Maya Garden, Zirakpur. As per the complainant at the time of booking of the flat on 16.06.2011 paid Rs.1.00 lac and was issued offer for allotment letter dated 09.07.2011 Ex.C-1 and as per the terms of allotment letter the complainant was to make total payment of Rs.31,10,400/- as per opted Plan-B.  As per Plan-B the total payment was to be made within 30 days from the booking till 410 days of booking.  Though the perusal of the plan shows that it is not construction linked plan, however, after the payment of amount upon expiry of 410 days from the date of offer of allotment, the OP was to handover the flat to the complainant after charging 10% of the Basic Sale Price plus parking charges plus stamp duty plus any other charges applicable.  As per the complainant she has made all the agreed payments upto 02.01.2014 whereas before handing over the possession of the flat to the OP had issued demand notice dated 19.03.2014 Ex. C-9 vide which the OP had asked the complainant to pay a sum of Rs.86,500/- as service tax and Rs.3,26,583/- as interest on the delayed payment and against the said demand notice the complainant sought clarification from the OP showing the interest chargeable from the due date of payment, date of payment, rate of interest and service tax calculation etc. as per Ex.C-10. The OP remained silent on this issue and thereafter the complainant had sent a detailed reminder Ex.C-11 dated 18.04.2014 to the OP by registered post and the complainant has produced postal receipt Ex.C-12. Without addressing the issue raised by the complainant, the OP has issued a fresh offer of possession letter dated 22.02.2015 Ex.C-13 wherein the OP has reiterated its demand of interest on delayed payment, service tax and in addition demanded payment towards balance cost of flat and maintenance charges. The total amount demanded in the said letter is Rs.8,47,922/- and asked the complainant to take over the possession by making said demanded amount by 10.03.2015 failing which the OP will levy penalty charges of Rs.10/- per sq. ft. per month. The complainant again made a request dated 05.03.2015 Ex.C-14 sent by registered post vide postal receipt Ex.C-15 wherein the issue of demanded amount has been raised by the complainant. The OP has failed to respond to this, hence the present complaint. The complainant has disputed the demanded amount in the demand letter being an act of unfair trade practice on the part of the OP.

7.             The issues involved in the present complaint are (a) whether the OP has wrongly charged the interest amount to the tune of Rs.3,26,603/- as shown in demand letter dated 22.02.2015 Ex.C-13 (b) wrongly charged the balance part of sale consideration Rs.3,11,160/- and wrongly charged the maintenance charges @ Rs.2.75 per sq. ft. for 1152 sq. ft. area  for three years, total amount being Rs.1,14,048/- and service tax Rs.96,111/-.

8.             In order to address the first issue i.e. the interest on the delayed payment, the complainant has relied on Ex.C-11 wherein the complete breakup of the amount paid by the complainant to the OP since the booking of the flat and allotment thereof vide letter dated 09.07.2011 till 02.01.2014 has been shown. As per the complainant against the agreed sale consideration of Rs.31,10,400/-, as per Plan-B opted by the complainant, she was to make 90% payment within 410 days from the date of booking. There is no dispute with regard to the following payments made by the complainant:

8.             As per payment Plan-B Schedule the complainant was to make 90% of the payment of agreed amount within 410 days of the booking. The above table clearly shows that from the date of booking i.e. on 09.07.2011, 410 days expires on 22.08.2012. As per the complainant the last payment was made on 02.01.2014 against the demand letter dated 06.11.2013.  Since as per terms of allotment the possession of the flat was to be given by April, 2012 and the OP has failed to do so and, therefore, the OP itself has increased the time period for making payment of the balance amount of consideration by issuing fresh demand notice dated 06.11.2013 beyond the expiry of agreed period of 410 days. Therefore, as per the complainant the OP cannot charge any interest on the delayed payment as there is no willful delay on the part of the complainant.  The OP has not put forth any reason for non delivery of possession beyond April, 2012 and further has not denied the issuance of demand notice dated 06.11.2013 and acceptance of the demanded amount mentioned in the demand notice dated 06.11.2013. Therefore, the OP cannot take benefit of its own unilateral acts and put on the burden of interest on the delayed payment to the complainant. Thus charging of interest on the delayed payment, in our considered opinion, is unfair trade practice on the part of the OP.

9.             Regarding charging balance cost of the flat, the OP has issued the demand notice for payment of Rs.3,11,160/- as per Ex.C-13. The complainant is bound to pay the balance cost of flat and the demand notice, therefore,  qua Rs.3,11,160/- is in no manner contrary to the agreed terms of agreement and cannot be in any manner termed as illegal act and illegal demand.

10.           So far the service tax and demand thereof for Rs.96,111/-  as shown in Ex.C-13 is concerned, the complainant has drawn our attention to Ex.C-10 which she has issued to the OP in response to earlier demand letter dated 19.03.2014 Ex.C-9. As per Ex.C-10 the complainant has asked for the service tax calculations so demanded vide Ex.C-9. The OP has not responded to the same, so much so the complainant has issued registered letter dated 18.04.2014 Ex.C-11 which remained unanswered in the hands of the OP and the OP has issued fresh demand notice Ex.C-13. The counsel for the OP has relied upon Clause 11 of the buyers agreement dated 25.01.2012 Ex.OP-3. Vide Clause-11 of the said agreement the service tax is to be borne by the complainant proportionately with other allottee, residents, owners of the flats and, therefore, the OP has rightly charged the service tax and demanded the same in demand letter Ex.C-13. We are in full agreement with the contention of the OP in this regard and do not find anything amiss on the part of the OP while raising a demand for service tax.

11.           So far demand of maintenance charges for 3 +3 years, the complainant has been asked to make payment of Rs.1,14,048/- by the OP as per Ex.C-13. The complainant has sought clarification from the OP regarding fixation of the rate of Rs.2.75 per sq. ft. per month as maintenance charges for three years and as per the complainant the said amount is unreasonable and on higher side. In fact the complainant has right to know as per the Consumer Protection Act the calculation formula adopted by the OP while arriving at this figure of Rs.2.75 per sq. ft. per month and the OP has failed to provide any response to the complainant in this regard. The reply of the OP is absolutely silent in this regard. The counsel for the OP on the other hand has drawn our attention to Clause 18 of the buyer agreement Ex.OP-3 wherein the OP was obliged to provide free maintenance service for three years from the date of first possession of any apartment out of total apartments in the project and thereafter to charge three years maintenance charges in advance from the allottees. The OP has failed to show the date of first possession of any apartment to provide the benefit of three years maintenance to the allottees. Therefore, in the absence of any document on record, the OP is not entitled to levy any maintenance charges on the complainant for three years in advance. The right to know being a vital right to the complainant under the Consumer Protection Act and it was the duty of the OP to show the date of first possession of the apartment and three years expiry thereof, when the OP is entitled to charge maintenance charges in advance for next three years from the complainant. The OP has failed to do so. Therefore, in the absence of any document on record to show the bonafide of the OP, we are of the considered opinion that the OP has indulged into unfair trade practice by levy of 3 years advance maintenance charges upon the complainant through the demand letter Ex.C-13.

12.           Therefore, the complainant has proved her complaint of unfair trade practice on the part of the OP on two counts i.e. levy of interest on delayed payment and advance payment of three years  maintenance as per Ex.C-13. On other two counts i.e. payment of balance consideration and service tax, the complainant is bound to make the payment and the demand raised by the OP on these two accounts is not contrary to the terms of agreement.  

13.           Thus the complaint is partly allowed with the following direction to the OP:

(a)    to modify/revise the demand notice  dated 22.02.2015 Ex.C-13  by withdrawing the demand for interest on delayed payment and payment of advance maintenance charges for three years, within a period of 15 days from the date of receipt of a certified copy of this order.

 (b)   to pay to the complainant a lump sum compensation of Rs.20,000/- (Rs. Twenty thousand only) for mental agony, harassment and costs of litigation       within a period of thirty days from the date of receipt of a certified copy of this order.

                  Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the file be consigned to the record room.

Pronounced.                           

December 17, 2015.     

                         (Mrs. Madhu P. Singh)

                                                                        President

(Amrinder Singh Sidhu)

Member

(Mrs. R.K. Aulakh)

               Member