RESERVED
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
UTTAR PRADESH, LUCKNOW
COMPLAINT NO. 173 OF 2017
01.Satya Prakash Goel
S/o Late Munshi Lal
R/o 115, Surya Enclave, Sector-12
Indira Nagar, Lucknow-226016.
02.Ankita Goel, W/o Sri Sachin Goel
R/o 115, Surya Enclave, Sector-12
Indira Nagar, Lucknow-226016.
...Complainants
Vs.
- Eldeco Housing and Industries Limited
Having its Registered Office at 201-212
2nd Floor, Plot No.3 Splendor Forum
District Center, Jasola
New Delhi – 25
Through its Managing Director
02.Eldeco Housing and Industries Limited
Having its Corporate Office at 2nd Floor
Eldeco Corporate Chamber-1, Vibhuti Khand
(Opp. Mandi Parishad), Gomti Nagar
Lucknow
Through its DGM (Marketing)
...Opposite Parties
BEFORE:
HON'BLE MR. JUSTICE ASHOK KUMAR, PRESIDENT.
HON’BLE MR. GOVARDHAN YADAV, MEMBER.
HON’BLE MR. RAJENDRA SINGH, MEMBER
For the Complainant : Smt. Neelam Yadav and Sri
Sushil Kumar Sharma, Advocate.
For the Opposite Party : Sri Rajesh Chadha, Advocate.
Dated : 25-03-2021
JUDGMENT
PER MR. JUSTICE ASHOK KUMAR, PRESIDENT
The instant complaint case has been filed by Sri Satya Prakash Goel and Smt. Ankita Goel hereinafter referred to as complainants under Section 17(1) of the Consumer Protection Act 1986. The complainants prayed before this Commission for handing over of the possession of fully developed Villa No. 750, plot area 167.40 square meters and built-up are 93.55 square meters at “ELDECO
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CITY”, IIM Road, Lucknow. The opposite parties are the promoters, builders and contractor and are registered under the provisions of Indian Companies Act 1956 as a Limited Company. The opposite parties are engaged in construction activities and has developed a residential township, namely Eldeco City, located at IIM Road, Lucknow. The housing scheme has been launched by the opposite parties and the opposite parties invited the buyers for sale of Villas in their residential scheme by means of mode of advertisement. The complainants approached the opposite parties and applied for a Villa which has been allotted after execution of an agreement dated 03-08-2010 being Villa No. 750 consisting of plot area admeasuring 167.40 square meters and built-up area of 93.55 square meters in the above mentioned project.
The basic cost of the aforesaid Villa was agreed at Rs.32,30,372/- and it has been categorically mentioned in the said agreement which was executed on 03-08-2010 that the aforesaid Villa will be located at 45 mtrs. wide road for which the opposite parties had charged preferential location charges and as per the agreement the possession of the Villa in question was to be handed over by the opposite parties to the complainants in the month of May, 2013. Annexure 01 is the copy of the agreement dated 03-08-2010.
It is submitted by learned Counsel for the complainants that as per Allotment Certificate & Agreement dated 03-08-2010, Under the Instalment Payment Plan after 3 months of receipt of the entire basic price the possession is to be given by the opposite parties/builder and in the present case the complainants paid their last instalment on 22-11-2012, as such the possession of Villa in question would be handed over by 22-02-2013.
It is further submitted by learned Counsel for the complainants that as per the Allotment Certificate & Agreement dated 03-08-2010 the complainants opted Plan – B/Time Linked Instalment Plan and deposited the instalments as per terms and conditions of the said agreement fixed by the opposite parties for the said Villa No. 750 in the Eldeco City, IIM Road, Lucknow and paid the amount of Rs.32,30,373/- (Rupees Thirty two lacs thirty thousand three hundred seventy three only) from 30-07-2010 to 22-11-2012.
It is submitted by learned Counsel for the complainants that as per the agreement as well as plan of the opposite parties the Villa in question was located at 45mtrs. wide road and on the basis of the said prime location the complainants have got the said Villa, allotted to their name for which the opposite parties charged Preferential Location Charges and the possession of
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the fully finished Villa in question was to be given by the opposite parties after developing the entire project in May, 2013 but the opposite parties failed to give the possession as per their own commitments and vide leter dated 20-08-2016 opposite parties offered Final Demand Notice/Offer of Possession of the Villa in question and demanded a sum of Rs.4,42,260/- from the complainants includidng the service tax of Rs.1,07,726/- from the complainants while the liability of the service tax is not appliciable upon the complainants since the Villa in question was booked in the year of 2010 and the applicability of service tax were started w.e.f. 01-07-2012, as such the opposite parties wrongly demanded the amount of Rs.1,07,726/- from the complainants.
The complainants have received a demand notice dated 20-08-2016 and thereafter visited the site/location of the Villa in question and it was found that as per the commitments of the opposite parties the Villa in question is not situated at 45 mtrs. wide road, as such the same is located at narrow road and it is further noticed that adjacent to the road there is a big Naala (open drainage) which is not covered and on account of that open naala the atmosphere and environment nereby the Villa in question was very bad and stinking. It is also noticed by the complainants that the quality of the construction of the Villa is very poor and further that the down pipe from the roof of two Villas is common which in fact is against the norms of the development authorities. The complainants, therefore, approached the opposite parties for rectification and removal of the above mentioned pointed out defects and further informed that the complainants will accept the possession after the defects which are indicated by them are rectified and removed by the opposite parties.
Learned Counsel for the complainants has pointed out that as per the agreement the Villa in question was required to be handed over to the complainants by the opposite parties in the month of May, 2013 whereas the opposite parties have offered the same only by means of the demand notice for the possession of the Villa in the month of August, 2016, therefore, the liability to pay the stamp duties has been increased for which the complainants are not responsible as admittedly the delay was caused due to non furnishing of the Villas and admittedly the possession has not been given to the complainants by the opposite parties in due time.
Learned Counsel for the complainants has further submitted that the drainage line constructed by the opposite parties has been constructed just in front of the Villa which has been allotted to the complainants and further that
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due to poor pathetic condition the complainants cannot enter in the aforesaid unfinished Villa which is located at only 15 mtrs. wide road whereas the Villa which was offered to the complainants by the opposite parties was promised to be provided/located at 45 mtrs. width road on preferential location for which the extra charges were paid.
Learned Counsel for the complainants has further pointed out that the opposite parties are also accountable for unfair trade practice as they have enjoyed and utilized the hardearned money of the complainants as well as of several other allottees without providing the possession of the Villa/property in time.
Learned Counsel for the complainants has further pointed out that the entire amount has been paid to the opposite parties by the complainants in between July, 2010 to November, 2012 to the tune of Rs, 32,30,000/- and odd, therefore, the demand notice/letter of offer of possession of the Villa in question and further demand of sum of Rs. 4,42,000/- from the complainants including the service tax of Rs.1,07,726/- is unjustified.
Learned Counsel for the complainants has drawn our attention to the agreement dated 03-08-2010 in which we have noticed that the description of Villa allocated to the complainants has been mentioned as Unit No. 750, Type of Villa ‘C’, Category-I, Plot Area and Preferential Location – 45 meters Road. The basic cost has been mentioned being Rs.32,30,372/- both in figure and words.
It further refers quarterly 25 monthy instalments to be paid at the rate of Rs.96,911/- starting from the month of October, 2010 and it further refers that under the down payment plan after 28 months of receipt of the entire basic price and after receipt of extra charges, registration charges and any other charges as may be intimated /demanded by the company the possession will be handed over to the complainants. The schedule of payment has been described in Clause – B of the said agreement and Clause – D provides the period of possession.
Learned Counsel for the complainants has pointed out Clause – D (8) which provides the description of the period in which the opposite parties undertake to handover the possession of the property/villa. For the ready reference the contents of Clause –D(8) reads as follows:-
“The construction of Said Villa is likely to be completed within a period of ...............months of commencement of construction of the particular Block in
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which the Said Villa is located with a grace period of 6 (six) months subject to the receipt of requisite building/revised plans/other approvals & permissions from the concerned authorities; Force Majeure Conditions; restrains or restrictions from any courts/authorities; non-availability of building materials; disputes with contractors/work force etc. and circumstances beyond the control of the Company & also subject to timely payments by the Allottee/s in terms of this agreement. No claim by way of damages/compensation shall lie against the Company in case of delay in handing over of possession on account of the aforesaid reasons.”
From the bare perusal of above Clause-D(8) it is clear that the opposite parties deliberately did not mention the period in which the construction of the Villa will be completed or handed over to the buyers/allottees. Learned Counsel for the complainants, therefore, submits that in fact it was a fraud by the opposite parties by deliberately not filling or describing the period in which construction/possession of the property was to be completed/handed over to the buyer.
Learned Counsel for the complainants, therefore, submits that the intention of the opposite parties was ill intention as they failed to provide the possession to the complainants in time and further that they have illegally issued the demand notice just to justify their ill intention and delay caused at their hands.
This complaint case has been filed before this Commission in May, 2017. Since then it was listed at least on different 20 dates and has been adjourned on account of various reasons which are duly mentioned in the order sheets.
On 23-02-2021 the matter came up for consideration and when this Commission has perused the several previous orders passed by this Commission the following order has been passed.
“Having heard ld. counsel for the complainants Sri Sushil Kumar Sharma assisted by Smt. Neelam Yadav and Sri Rajesh Chaddha for the opposite parties/builder.
We have gone through several documents including the agreement which has been executed in between the parties and the letters with regard to demand notice etc. From perusal of the documents available on record, it is crystal clear that the entire amount settles/agreed in between the parties
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has been deposited by the complainant between the year 2010 to November, 2012.
Admittedly, the demand notice and letter of possession has been issued by the opposite parties on 20.8.2016 i.e. after a gap of about 4 years from the date of last deposit of the principal amount.
There are certain allegations levelled by the ld. Counsel for the complainants as well as the complainant who is also present before us (Sri Satya Prakash Goel). After going through the entire material available on record and after hearing the ld. Counsel at length, this court deem it appropriate to appoint two Advocates of this court as the officers of the this court as Commissioners to make an spot inspection and to submit their detailed report including photographs which they will find at the place of disputed Villa.
This court is appointing Ms. Tara Gupta, Advocate and Sri Piyush Mani Tripathi, Advocate as Advocate-Commissioners to carry out the directions mentioned herein above and submit their detailed report including the photographs of the disputed Villa. Ld. Counsel for the respective parties may also accompany the Advocate-Commissioners at the time of inspection.
The opposite parties will pay a sum of Rs.20,000/- to each of the Advocate-Commissioners within 48 hours i.e. by 4 p.m. on 25.2.2021 by demand draft in their names and a sum of Rs.2,000.00 each towards expenses.
Advocate-Commissioners are directed to visit the disputed site/Villa in question on Saturday i.e. 27.2.2021 at 11 a.m.
Conveyance/four wheeler car will be provided to the Advocate-Commissioners by the opposite parties for their visit.
Put up this case at 10.30 a.m. on 1.3.2021 as agreed in between the ld. Counsel for the parties.”
In compliance of the order dated 23-02-2021 the Advocate Commissioners submitted their reports alongwith certain photographs which are available on record.
We have perused the reports of the Advocate Commissioners. The relevant extracts of the report of Advocate Commissioner Sri Piyush Mani Tripathi are referred and quoted herein below.
“On entry to Villa I noticed that the floor tiles are available as well as electrical fittings are also available. All the doors, windows with the glasses
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alongwith plasters were in place. However, the color of the floor tiles is fade and they are dirty on several places, I notice that few tiles are in damage condition. There are minor gaps in the floor tiles, I cannot comment that whether they are ceramic tiles or not, this can only be verified by the project specification report which is available with the builder in view of Lucknow Development Authority, Building Constructon & Development Bye Laws/Regulations 2008 (Revised 2011/2016).
At the back side of villa there was an open space and the boundary of the said villa was surrounded by other villas.
Electrical Fittings and sanitary fittings are available in Villa, Kitchen floor is dirty and dark patches are available on the floor tiles. I noticed that the moisture is available on the walls of the kitchen.
I inspected two toilets, one is Indian style toilet and another is western style toilet. Indian style toilet is in filthy condition, lower portion of doors of this toilet is having moisture, the seat of the toilet is very dirty and the tiles of both walls and floors are very dirty having dark patches.
The western toilet is better in condition in comparision to Indian style toilet, however the floor tiles of this toilet also is having dark patches.
As I went outside the Villa 15.8 meters wide road was there after which 4.2 meters pavement alongwith the big drainage (Naala), I notice foul smell as I went close to the pavement.
I also took photographs of the structure on the right side of the Villa which is under construction.
No person is residing at the either side of the Villa at the time of the inspection carried out by us, however, people were peple were living in the beginning of the row houses.
Conclusion: Villa needs proper renovation before one can reside with their family. In view of the direction dated 23-02-2021 issued to us by this Hon’ble Commission this report is submitted herewith alongwith photographs as well as CD disk of the videography performed by us of the project site.”
The report of the other Advocate Commissioner Miss. Tara Gupta
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reads as follows:-
“As per the direction of this Hon’ble Commission we visited the dispsuted spot on 27-02-2021 at about 11 am. The parties werepresent on site, complainant Mr. Satya Prakash Gel was present in person and Eldeco Housing is represented by their General Manager (Project) Mr. P N Rai and other officers and two other persons i.e.Mrs Ankita Goel and Mr. Paritosh Mohan.
At the dispsuted villa we entered from main gate which was attached from the boundary of the villa, I found covered parking space which was made by Tiles on ground and on the right side muddy garden was situated. And after that drawing cum dining room was situated with Tiles flooring as well as electrical fittings and boards were also available, in which I found that the three tiles of was broken/in damage condition and some places of the floor tiles was dirty and the Plaster of Wall and roof was not in damage condition. And staircase was in the drawing cum dining room, which was marble fitted and good in condition but dirty.
When we entered in Kitchen, we found Electrical Fittings and boards were available in Kitchen, Tiles was fitted appox 4-5 fts height in all sides wall and flooring Tiles and granite slab was there in “L” shape, and fitted with Steel wash basin and tap, and below the washbasin floor was dirty.
I inspected two toilets, one is Indian style toilet and another is western style toilet. In the Indian style toilet Tiles was fitted appox 5-6 fts height in all sides and the seat & Floor of the toilet was very dirity. And a washbasin with tap & cistern were fitted and the door of the toilet was not in good condition.
In the western toilet Tiles was fitted appox 5-6 fts height in all sides and the seat & Floor of the toilet was in good condition. And a washbasin & cistern were there but there was no any tap I the bathroom. The door of the toilet was in good condition, floor Tiles of this toilet was dirty.
And the said western toilet was attached with Bedroom and I found moisture outside the said toilet on the lower side corner which was in the bedroom side.
At the back side in the villa premises, open space of mud floor was
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there, and the left side 4 inches width (thick) & approx 4 ft high wall of two villas was situated. And after back side of the said villa a double stories villa is situated and its 2-3 inches wall is inside of the half portion of said disputed villa and other half portion wall of disputed villa is 2-3 inches width (thick) & approx 4 ft high.
All the doors, windows with glass, roofs, wall plaster was in good condition except door of Indian style toilet.
As we went outside the Villa 15.8 mts wide road was there and after 4.2 mt from the road observed large drainage (Nala) was there.
No person is residing at the either side of the Villa at the time of the inspection carried out by me. But person are residing near by the villa.
I took the signatures of the both parties and dothers who were present on site and in their presence inspected the villa and took photographs of the villa inspected by me.”
We have perused the above referred reports submitted by learned Advocate Commissioners.
Sri Rajesh Chadha, learned Counsel for the opposite parties, builder has filed an application for taking on record enclosed documents. Page 3 of the said application is a copy of a letter dated 15-01-2016 signed and issued by the Competent Authority (BHAWAN) Under the U.P. Urban Planning and Development Act, 1973. Page 4 of the said application is a letter issued by Vice Chairman, Lucknow Development Authority dated 30-05-2013 addressed to अनुसचिव, आवास एवं शहरी नियोजन, अनुभाग-3, उ.प्र. शासन, लखनऊ in which the subject has been referred as follows:-
“ग्राम-मुतक्कीपुर में एल्डिको सिटी प्राइवेट लिमिटेड द्वारा अवैध निर्माण कराये जाने के सम्बन्ध में।“
Page 6 of the aforesaid application is a letter issued by Deputy General Manager (P.R./Security) on behalf of the opposite party, the Company addressed to the District Magistrate, Lucknow dated 26-06-2014 referring therein that the agriculturist of the area may be directed to permit
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the opposite parties to continue the work of construction at the site.
Page 8 is the copy of the same letter dated 04-06-2014 addressed to the Senior Supdt. of Police, Lucknow.
Learned Counsel for the opposite parties has also filed an affidavit/ evidence on behalf of opposite parties dated 25-02-2021. The said affidavit has been filed by one Ghanshyam Mishra referring himself as care of the Eldeco Housing and Industries Limited, 2nd Floor, Eldeco Corporate Chamber-2, Vibhuti Khand, Gomti Nagar, Lucknow. The said Ghanshyam Mishra, deponent of the affidavit has stated on oath that he is a D.G.M. Marketing in the office of the opposite party and is authorized and empowered to swear the affidavit on behalf of the said Company.
Page 4 of the said affidavit is possession certificate/document referring the letter dated 08-06-2013 related to Villa No. 414. Likewise other letters are also pasted as page 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16. All the aforesaid documents/pages are related to different allottees who are given the possession of their flats/villas/properties etc. during the period 2013 to 2017.
Learned Counsel for the opposite parties therefore submits that since a demand notice has been issued by the opposite parties to the complainants requiring the complainants to pay further sum of Rs.99,628/- towards service tax, Rs.20,612/- towards misc. charges which includes the interest on delayed payment of basic price, club membership fees, service tax and further sum of Rs.92,310/- towards refundable security deposit against recurring maintenance charges, lump sum non refundable maintenance deposit, 36 months recurring maintenance charges maintenance @ Rs.900/- per month in advance and service tax thereon.
Learned Counsel for the opposite parties therefore submits that the said amount as indicated herein above has not been paid against the demand notice dated 20-08-2016 by the complainants, the action not allowing the complainant to take the possession of the Villa is fully justified.
Per contra learned Counsel for the complainants has pointed out that from the bare perusal of the aforesaid final demand notice/offer of possession it is crystal clear that the complainants had already made payment to the opposite parties to the tune of Rs.33,17,561/- which is clear
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from the perusal of page 2 of the said notice dated 20-08-2016.
Learned Counsel for the complainants further submitted that the demand indicated in the final demand notice with regard to service tax is wholly illegal as also the misc. charges namely interest on delayed payment of basic price, club membership fees, refundable security deposit against recurring maintenance charges, lump sum non refundable maintenance deposit, 36 months recurring maintenance charges maintenance @ Rs.900/- per month in advance.
Learned Counsel for the complainant therefore submits that admittedly the Villa has not been handed over in due time and even not till date and further that admittedly the road on which the Villa situates has been reduced from 45 mtrs. width to about 15 mtrs. for which the complainants have paid much more amount than of other villas as preferential charges, the action of the opposite parties is highly unjustified, illegal and against the contents of the agreement so stipulated therein.
Learned Counsel for the complainants has also placed reliance of the reply submitted by an Advocate in pursuance of demand notice dated 20-08-2016, a copy of the reply is enclosed as annexure-4 of the complaint.
Learned Counsel for the complainants has further placed reliance of letter issued by the opposite party company dated 29-11-2016 in which it is referred that the Villa allotted to the complainants situates at 45 mtrs. open area which includes the road area.
We have examined the entire material available on record and also perused the reports submitted by learned Advocate Commissioners and the documents which are available on record. After due consideration of the material available on record and after perusal of contents of the agreement and the conditions stipulated therein as well as the notice of demand and the reports of Advocate Commissioners we are of the opinion that the facts admittedly establishes that the agreed amount of the disputed Villa has been paid/deposited by the complainants in between the year 2010 to 2012. At no point of time the opposite parties or their Counsel has pointed out that the complainants have failed to comply the conditions so stipulated in the agreement or in other words that the complainants failed to pay the quarterly/monthly instalment as fixed/stipulated in the agreement. The
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maintenance charges, club charges or other charges as so indicated in the demand notice dated 20-08-2016 are payable by the allottee after the possession is handed over by the builder/opposite party. The question of demand of maintenance charges does not come in picture as from the bare perusal of the reports submitted by the learned Advocate Commissioners the Villa in question is not found in good shape or in good condition where one can go and resides without proper maintenance and repairing etc. In any view of the matter we have seen that even after a gap of more than ten years the Villa in question has not been handed over to the complainants by the opposite partes and further that the extra amount paid by the complainants towards in the head as preferential price has not been adjusted by the opposite parties while admittedly they failed to provide 45 mtrs wide road or open area in front of the Villa allotted to the complainants, therefore, the complainants are entitled to get a compensation/cost of Rs.10,00,000/- (Rupees Ten lacs only) from the opposite parties. Apart from the aforesaid cost of Rs.10,00,000/-, the opposite parties will also calculate the interest at the rate of 10% per annum from the date of deposit of the instalment by the complainants till the date of the payment made to the complainants. Further the opposite parties will also pay a sum of Rs.50,000/- to the complainants under the head of maintenance of the Villa.
This Commission, therefore, directs that the above directions be complied with by the opposite parties by 30-04-2021.
The complaint is accordingly allowed.
( Justice Ashok Kumar ) ( Govardhan Yadav ) ( Rajendra Singh )
President Member Member
Pnt
Court-1
