RESERVED

       STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

                                   UTTAR PRADESH, LUCKNOW

                                    COMPLAINT NO. 236 OF 2019

1.  Awadhesh Kumar Agarwal

      S/o Sri Phool Chand Agarwal

      R/o CM-10, Sector-B Aliganj

      Lucknow

2.  Sri Anshu Agarwal

      S/o Sri Awadhesh Kumar Agarwal

      R/o CM-10, Sector-B Aliganj

      Lucknow

                                                                              ....Complainants

                                                          Versus

1. Eldeco Housing and Industries Limited

Registered Office situated at Eldeco

Corporate Chamber-1, 2^nd Floor,

Vibhuti Khand (Opposite Mandi Parishad)

Gomti Nagar, Lucknow

Through its Director

2. Eldeco Housing and Industries Limited

Registered Office situated at 201-212

District Center Jasole, New Delhi

Through its Director

                                                                                ....Opposite Parties

BEFORE:

HON’BLE MR. JUSTICE ASHOK KUMAR, PRESIDENT

For the Complainant        :  Sri Vijay Vikram Singh, Advocate.

For the Opposite Party     :  Sri Rajesh Chadha, Advocate.

Dated :  07-09-2021

                                              JUDGMENT

PER MR. JUSTICE ASHOK KUMAR, PRESIDENT

This is a complaint filed by the complainants Sri Awadhesh Kumar Agarwal and Sri Anshu Agarwal under Section 17 of the Consumer Protection Act 1986 against the opposite parties.

The brief facts of the complaint are that on the basis of lucrative advertisements made by the opposite parties regarding their project, being influenced by the advertisement made via print media and electronic media, the innocent persons/consumers likewise the present complainant had applied for allotment of a residential unit of the scheme introduced by the opposite parties.

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The complainant has applied for allotment of the Unit No. T3-505. By means of Letter of Allotment dated 16-09-2010 the cost of the unit is fixed by the opposite  parties to the tune of Rs.29,04,000/-. The allotment letter aforesaid provides the discount of Rs.2,90,400/- i.e 10% of the total price of the Flat in question if the buyer deposits the balance cost of the property to the tune of Rs.26,13,600/-. The said scheme was called by the opposite parties as ‘Cash Down Payment Plan. A copy of the Letter of Allotment of the Flat in ELDECO  ETERNIA situated at Sitapur Road, District Lucknow has been issued by the opposite parties on 16-09-2010. An agreement has been executed on 23-10-2010 containing the terms and conditions. In the agreement it is mentioned that in case of default in receipt of payment of the instalment, the allottee shall be saddled with the imposition of interest penalty of 18%. The period for handing over the possession of the assured Unit/Flat has been clearly mentioned in the agreement within a period of 36 months. The complainant, therefore, has applied for financial assistance with HDFC. Bank and by agreement dated 23-10-2010 an amount of Rs.21,00,000/- is sanctioned to the complainant by the said bank.

The complainant deposited the entire agreed cost of Rs.26,13,600/- as per the Letter of Allotment dated 16-09-2010 and it is incumbent on the opposite parties to complete the construction of the allotted unit within the time stipulated in the agreement and to issue a call for possession.

Learned Counsel for the complainant submits that admittedly the opposite parties did not complete the construction of allotted unit within the agreed period of time schedule despite of the fact that the complainant deposited the entire cost of the unit. The submission of the learned Counsel for the complainant, therefore, is that the opposite parties in fact committed serious deficiency in service in the instant case. It is submitted that the complainant was in fact in dire need of the residential accommodation for himself as well as for his family members and due to non completion of the unit and non issuance of the call for possession letter by the opposite parties in due time, the complainant being deprived of his legal right to enjoy the possession of the property, therefore, it is submitted that the opposite parties are also accountable for unfair trade practice.

During the course of submission learned Counsel for the complainant

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submits that the opposite parties did not register their project with RERA authorities in view of the mandatory provisions under the RERA Act, neither the sanctions are available to the opposite parties; nor the completion certificate, the construction of the units are inordinately delayed and the project lacks the basic civic amenities.

It is submitted by the learned Counsel for the complainant that since the complainant was in dire need of the residential accommodation for himself and for his family members, therefore, he visited the project site on various dates and requested the person/incharge of the project for supplying of the Completion Certificate as well as Project Plan. It is also submitted by the learned Counsel for the complainant that in fact the opposite parties are also required to follow the provisions of the Lucknow Development Authority, Building Construction and Development Byelaws/Regulations 2008 (Revision 2011/2016), which in the instant matter are not followed by the opposite parties.

It is further submitted by the learned Counsel for the complainant that the opposite parties not only failed to fulfil the required conditions stipulated in the above mentioned regulations but also are accountable for violating the provisions of Uttar Pradesh Apartment Act. Learned Counsel for the complainant further submits that the opposite parties did not produce the Project Specification Report though the same was requested on many times by the complainant, nor the opposite parties provided the copy of the Occupancy/Completion Certificate.

Learned Counsel for the complainant submits that a letter dated 18-02-2015 has been issued by the opposite parties by which they called for possession stating therein that the unit is nearing completion. The said letter even did not speak that the unit in question is complete with all the basic civic amenities and is ready for possession or for living.

Learned Counsel for the complainant submits that in the alleged Letter of Possession dated 18-02-2015 the opposite parties asked/claimed illegal and arbitrary amount under various heads. A copy of the letter dated 18-02-2015 is enclosed by the complainant as Annexure-4 to the complaint. Learned Counsel for the complainant pointed out that the said letter dated 18-02-2015 refers the subject as follows:-

“Final Demand Notice/Offer os possession of Unit No.T-3/505 at Eldeco

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Eternia, Lucknow.”   

Learned Counsel for the complainant submits that admittedly the settled amount in between the parties of Rs.26,13,600/- has been paid by the complainant to the opposite parties, thereafter the letter of allotment dated 16-09-2010 has been issued by the opposite parties. In the said Offer of Possession/Final Demand Notice miscellaneous charges are asked by the opposite parties which are referred as follows:-

“Miscellaneous Charges:

1.Interest on delayed payment of basic price            : Rs.31,068/-

2.Club Development Charges                                   : Rs.20,000/-

3.Car parking charges (Bay No. yet to decided)       : Rs.2,62,500/-

(Car Parking Type-open twin

4.Servant room (Unit No. NA Super Area 0 sqft)     :Rs.0/-

5.Service Tax @12.36% on S.No.2 & 12.36% on

Open parking and 3.09% on Covered parking

And servant room i.e. S.No.3, 4.: Rs.34,917/-

               Sub Total II                                                                 : Rs.3,48,485/-

                     Service Tax (Amount received till date &            : Rs.0/-

                    Included in point VI below)”

Learned Counsel for the complainant has pointed out that the opposite parties have asked the complainant to pay sum of Rs.2,62,500/- towards car parking charges which allegedly was to be provided by the opposite parties on common area space which is covered under the super area. Learned Counsel for the complainant has also pointed out that service tax demand on open parking and on covered parking and servant room is demanded to the tune of Rs.34,917/- and sum of Rs.20,000/- towards club development charges. The balance payable amount is shown by the opposite parties to the tune of Rs.8,73,103/-.

A Legal Notice dated NIL has been issued by the complainant categorically stating therein that the unit is not complete and it is even not fit for possession till date then how the demand has been raised by the opposite parties. In the Legal Notice the details with regard to payments made by the complainant have been clearly indicated/mentioned and further that the complainant has paid a total sum of Rs.67,301/- towards Service Tax vide three receipts no. 667, 69713 and 68941 dated 31-12-2010, 22-10-2010 and 13-09-2010 respectively. It is categorically and clearly mentioned in the Legal

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Notice that as per terms and conditions of the plan in question, it has been agreed by the opposite parties that they will give the possession of the flat after execution of the Sale/Transfer Deed in favour of the applicant/complainant and further it was also agreed that the Flat will be given to the complainant in 36 months of the receipt of the entire basic price and other charges. The submission of the learned Counsel for the complainant is that the entire amount was paid by the complainant well in time and the Flat in question was supposed to be handed over to the complainant by 16-09-2013 but inspite of several requests and personal visits the offer of possession indicating therein final demand notice has been issued on 18-02-2015. The complainant visited the site immediately after receiving the said letter dated 18-02-2015 and found that the Flat in question was not in position to take into possession.

In the Legal Notice in para 8 the complainant has specifically pointed out the details with regard to deposit and the payment of interest to be paid by the opposite parties on account of delay period of 36 months till the date of notice. For the ready reference the extract of the said contents of para 8 needs to be mentioned.

“That as per the terms of allotment the company has right to claim interest @ 18% p.a. on delay in making the payment, therefore my client in view of the latest decision by Hon’ble Court in such matters deserves an interest @18% per annum on the deposited sum of Rs.26,80,931/- (Rupees Twenty Six Lacs Eighty Thousand and Nine Hundred Thirty One only) for the delayed period of 33 which amounts approx works out to be Rs.13,27,060/- = (monthly of Rs.40,213/-)”

The submission of the learned Counsel for the complainant is that though the opposite parties did not complete the unit with all the basic civic amenities and a letter dated 08-03-2019 has been issued stating therein that the complainant is being provided a discount and an amount of Rs.13,12,989/-is to be paid by the complainant. In the said letter dated 08-03-2019 it is also mentioned that process of registration and possession of above mentioned Unit shall be done by the developer after the said amount is deposited by the complanant. The submission of the learned Counsel for the complainant is that admittedly on the date of issuance of the said letter

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dated 08-03-2019 the final finishing of the Flat was not done, nor any details are mentioned by the opposite parties about the work executed by them and with regard to Completion Certificate and the Occupancy Certificate.

The submission of the learned Counsel for the complainant is that no correct position and status of the unit as well as the project in question is communicated by the opposite parties to the complainant even after a gap of more than six years from the date of delivery of possession of the flat in question. The submission of the learned Counsel for the complainant is that the entire instalments are paid to the bank alongwith the interest by the complainant on the loan amount, however, the possession of the fully finished unit has not been given by the opposite parties to the complainant and on account of default committed by the opposite parties irrepairable loss and injury is caused to the complainant and his family members. The submission of the learned Counsel for the complainant is that huge interest has been paid by the complainant to the bank from whom the loan was received. The complainant has prayed as follows:-

1. Direct the opposite parties to deliver the physical possession of the fully finished Unit No. T3/505 situated at Eldeco Eternia Sitapur Road, Lucknow with all the basic civic amenities and to quash the illegal and arbitrary demands raised by means of letters dated 18-02-2015 and 08-03-2019.
2. Direct the opposite parties to refund the interest amount of Rs.15,59,832/- paid to the bank alongwith EMI with effect from September, 2013 till the date of the possession of the fully finished unit.
3. Direct the opposite party to pay interest on the amount of Rs.26,80,901/- with effect from the respective dates of deposit till the date of the possession of the unit which this Hon’ble Commission may deem it just proper and judicious under the circumstances of this case.
4. Direct the opposite party to pay an amount of Rs10,000/-

towards rent with effect from September 2013 till the date of possession of the unit. (This relief is subsequently deleted by the learned Counsel).

5. Direct the opposite parties to pay appropriate compensation and damages which this Hon’ble Commission may deem it just and proper in the facts and circumstances of this case.
6. Direct the opposite parties to pay punitive damages to the complainant which this Hon’ble Commission may deem it just and proper in the facts and circumstances of this case.
7. Allow the complaint and direct the opposite party to pay a sum of Rs.1,00,000/- towards cost of the case.
8. Any odther order which this Hon’ble State Commission may deem fit and proper in the circumstances of the case may also be passed.” 

The instant complaint has been filed and is pending before this Commission since almost last two years and, therefore, the submission of the learned Counsel for the complainant is that the complainant had to wait for more than nine years and after failing in persuading the opposite parties, the complainant has come to this Court for rightful justice. In support of his submission learned Counsel for the complainant has placed reliance of the following judgments.

01.Fortune Infrastructure and Anr. V/s Trevor D’Lima and Ors, MANU/SC/0253/2018 : (2018)5 SCC 442.

02.Nahal Chand Laloo Pvt. Ltd. V/s Panchali Co-operative Housing Society Limited (2010) 9 SCC 536.

03.Pioneer Urban Land & Infrastructure Limited V/s Govindan Raghavan and others in Civil Appeal No. 12238 of 2018 and 1677 of 2019.

04.Lucknow Development Authority V/s M K Gupta MANU/SC/0178/1994 : (1994) 1 SCC 243.

05.Arifur Rahman Khan and others V/s DLF Southern Home Pvt. Ltd. and others Civil Appeal No.6239 and 6303 of 2019.

In support of his submission with regard to the provisions of the Lucknow Development Authority he has relied upon the judgment of the Hon’ble Apex Court in the case of Nahal Chand Laloo Pvt. Ltd. V/s Panchali Co-operative Housing Society Limited (2010) 9 SCC 536.

Submision of learned Counsel for the complainant is that it is clear

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from the bare reading of the alleged letter of alleged Final Demand Notice/Offer of Possession dated 18-02-2015 that the unit is nearing completion, therefore, admittedly the same was not completed at all or even till the letter issued by the opposite parties dated 08-03-2019.

Learned Counsel for the complainant has relied upon the following judgments of Hon’ble Apex Court.

01.In the case of Pioneer Urban Land & Infrastructure Limited V/s Govindan Raghavan and otherin Civil Appeal No. 12238 of 2018 and 1677 of 2019 the Hon’ble Apex Court has held that ‘9. We see no illegality in the impugned order dated 23-10-2018 passed by National Commission. The appellant builder failed to fulfit his contractual obligation of obtaining the Occupancy Certificate and offering possession of the flat to the respondent purchaser within the time stipulated in the agreement or within a reasonable thereafter. The respondent flat purchaser could not be compelled to take possession of the flat, even though it was offered almost 2 years after the grace period under the agreement exired. During this period, the respondent flat purchaser had a service loan that he had obtained for purchasing the flat, by paying interest @10% to the Bank. In the meanwhile, the respondent flat purchaser also located an alternate property in Gurugram. In these circumstances, the respondent flat purchaser was entitled to be granted the relief prayed i.e. refund of the entire amount deposited by him with interest.”

02.In the case of Lucknow Development Authority V/s M K Gupta reported in (1994) 1 SCC 243 the Hon’ble Apex Court has held that “it had been a settled principle of law that the jurisdiction of the consumer forum extends to the award of compensation to alleviate the harassment and agony to a consumer.

03.In the case of Arifur Rahman Khan and others V/s DLF Southern

Homes Private Limited and others in Civil Appeal No. 6239 and 6303 of 2019 the Hon’ble Apex Court has held that “a failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractualy stipulated period amounts to deficiency. The flat buyers are entitled to compensation

for delayed handing overof possession and for the failure of the developer to fulfil the representations made to flat buyers in regard to the provision of amenities.

With regard to computation of the on the total amounts paid towards the purchase of the respective flats with effect from the date of expiry of thirty six months from the execution of the respective ABA’s until the date of the offer of possession after the receipt of the occupation.

Therefore, the complainant is liable to get interest from the date of providing the amount till the receiving of completion certificate and it is pertinent that the respondents have not produced the completion certificate nor have informed the complainant about the completion certificate.”

At last learned Counsel for the complainant prays that heavy cost be imposed against the opposite parties.

Learned Counsel for the opposite parties has submitted that admittedly as per terms of the flat booking and agreement, the possession of the Flat was to be given after 36 months and six months grace period i.e. 42 months of receipt of the entire basic price and after receipt of other charges and registration charges etc.

Learned Counsel for the opposite parties has relied upon the terms of “possession” as stipulated in Clause-D of the agreement with a grace period of six months. No specific reply has been submitted by the learned Counsel for the opposite parties so far as the submission of the learned Counsel for the complainant with regard to the letter issued by the opposite parties dated 18-02-2015 which indicates that the unit is nearing completion and demand towards misc. charges which has been objected by the complainant. No specific reply has been given by the learned Counsel for the opposite parties with regard to the submission of the learned Counsel of the complainant for the application of the Utter Pradesh Apartment Act (Promotion of Construction, Ownership and Maintenance) Act 2010 and with regard to the non compliance of the provisions laid down by the Lucknow Development Authority. No specific reply has been given by the learned Counsel for the opposite parties with regard to the Completion Certificate and Occupancy

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Certificate.

Having heard the learned Counsel for the parties and after going through the entire material available on record I am of the opinion that in the instant case the facts clearly indicates that the unit in question was not completed even after lapse of nine years whereas the agreement clearly stipulate the period of issuance of Letter of Possession within 36 months plus 6 months grace time i.e. 42 months. The first Letter of Possession/Final Demand Notice has been issued on 18-02-2015 i.e. after the aforesaid period of 42 months and another letter dated 08-03-2019 has been issued by the opposite parties indicating therein the outstanding dues to be paid by the complainant, the extracts of which are given below:-

“Part-1

Basic Cost after discount          :Rs.26,13,600/- + Applicable Taxes/GST

Cost of Extra Area                   : Rs.35,844/- + Applicable Taxes/GST

Interest                                     : Rs.5,37,962/- + Applicable Taxes/GST

Club Development Charges     : Rs.20,000/- + Applicable Taxes/GST

Car Parking Charges                : Rs.2,62,500/- + Applicable Taxes/GST

LSMD                                      : Rs.19,995/-

MRMC                                    :  Rs.27,993/- + Applicable Taxes/GST

Other charges(Reimbursement) : 1,49,339/- + Applicable Taxes/GST

Total Amount Papyable          :  Rs.39,26,589 + Applicable Taxes/GST

Less Total Amount Received  :  Rs.26,13,600/- + Applicable Taxes/GST

Balance Payable                        :   Rs.13,12,989/- + Applicable Taxes/GST

Part-2

4.Recurring Maint, Holding Charges, and Fixed Charges will be applicable

after 180 days of FDN date and the same shall be updated till the date of

registry/possession request you to pls contact undersigned for further clarification if any.”

 I find no basis in the aforesaid calculation by the opposite parties when admittedly the opposite parties failed to discharge their duties and admittedly committed delay in completing the unit, therefore, it is obligatory upon the opposite parties to calculate the interest at the rate of 18% per annum on the entire payment made by the complainant from the date of payment till the date of possession of the unit and pay the entire amount which is due to the complainant within a period of 60 days from today. The opposite parties are also directed to provide the fully finished unit No. T3/505 situated at Eldeco Eternia Sitapur Road, Lucknow with all basic civic amenities to the complainant within a period of 60 days from today and pay sum of Rs.50,000/- towards the cost of the case.

                                                   ORDER

The complaint is allowed. The opposite parties are directed to calculate the interest at the rate of 18% per annum on the entire payment made by the complainant from the date of payment till the date of possession of the unit and pay the entire amount which is due to the complainant within a period of 60 days from today. The opposite parties are also directed to provide the fully finished unit No. T3/505 situated at Eldeco Eternia Sitapur Road, Lucknow with all basic civic amenities to the complainant within a period of 60 days from today and pay sum of Rs.50,000/- towards the cost of the case.    

Let copy of this order be made available to the parties as per rules.

The Stenographer is requested to upload this order on the website of this Commission today itself.    

                                                      ( JUSTICE ASHOK KUMAR )

                                                                     PRESIDENT

           Pnt.