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

Consumer Complaint No.23 of 2016

                                                Date of institution:  11.01.2016                                                  Date of decision   :  19.06.2019

1.     Satish Chander Bhatt son of Shri G.D. Bhatt

2.     Nidhi Awasthi Bhatt wife of Shri Satish Chander Bhatt

Both residents of House No.35, Shiva Enclave, Kurali Road, Kharar, District Mohali, Punjab.

…….Complainants

Versus

G.B.M. Developers and Promoters Pvt. Ltd., Site Office No.4,5 and 6, Shiva Enclave, Kurali Road, Kharar, Greater Mohali, Punjab through its Director Sh. Subhash Bansal.

2^nd Address:

G.B.M. Developers and Promoters Pvt. Ltd., SCO No.348-349, 2^nd Floor, Sector 34-A, Chandigarh.

                                                      ……..Opposite Party   

Complaint under Section 12 of

the Consumer Protection Act.

Quorum:    Shri G.K. Dhir, President,

                Mrs. Natasha Chopra, Member.

Present:     Shri C.L. Dass, counsel for complainants.

                Shri Rishi Kaushal, counsel for OP.

Order by :-  Shri G.K. Dhir, President.

Order

               After seeing news items, complainants approached OP, who is carrying on business of promoters and developers, for allotment of one BHK Flat alongwith site of car parking and club membership plus facility of modern elevators in each block. As per deal struck between parties for purchase of one BHK flat No.678 on 6^th floor, total amount of Rs.14.00 lakhs inclusive of all other expenses pertaining to one car parking and club membership with modern elevators in each block was settled.  Terms and conditions in this respect were settled on 04.10.2013. Amount of Rs.2.00 lakhs was paid through cheque dated 29.09.2013 regarding which receipt No.334 of 26.11.2013 was issued by OP. Allotment letter was issued by OP in favour of complainants on 04.10.2013. Possession was to be delivered within 90 days from the date of issue of allotment letter. On approach to HDFC Bank for availing loan by complainants, same was granted to the tune of Rs.11.90 lakhs on 29.11.2013. That amount also was paid to OP, and as such total amount of Rs.13.00 lakhs, out of payable amount of Rs.14.00 lakhs has been paid untill December, 2013. Complainants claim to be regularly paying installments of Rs.11,990/- since from December, 2013 to HDFC Bank alongwith interest. Though complainants were hoping of getting possession of the flat as per terms and conditions of the agreement, but even after expiry of 90 days possession has not been handed over. On 08.10.2014 OP sent letter to complainants for claiming service tax included @ 3.09% despite the fact that there was no condition to pay service tax on the payable amount, as per terms and conditions of the agreement. Complainants sent reply stating that they have already paid Rs.13.00 lakhs out of Rs.14.00 lakhs for all charges, and are paying loan installments, as referred above. On 04.05.2015 complainants sent protest letter to OP and demanded possession of the flat alongwith other facilities as promised by OP. OP sent letter for calling upon complainant to pay dues. Interest of amount of Rs.38,589/- on due amount of Rs.1.00 lakh was claimed in addition to amounts of Rs.40,170/- as service tax; Rs.10,408/- interest on service tax and Rs.17,370/- as holding charges. Demand of Rs.2,06,537/- in this way was put forth. After receipt of letter dated 26.05.2015, complainants approached  OP for delivery of possession of the flat alongwith basic facilities, but OP refused by putting forth demand of Rs.1,50,000/- for modern elevator. This amount was never settled at the time of booking of flat. OP again sent reminder dated 31.08.2015 for seeking above referred amount of Rs.2,06,537/-. Letter dated 26.10.2015 again was sent by OP to complainants.  However, when complainants visited site, then they found as if basic facilities of lift, parking, roads and club etc. were not there. After finding so, complainants approached OP for providing said facilities, but OP did not provide any satisfactory reply. As flat purchased by complainants was on 6^th floor and as such without facility of lift, it is not possible for complainants to reach in that flat. OP demanded Rs.2,31,588/- through letter dated 26.10.2015. Split of that amount given as Rs.1.00 lakh as pending amount; Rs.46,134/- as interest @ 18% per annum on Rs.1.00 lakh; Rs.40,170/- as service tax; Rs.13,439/- as interest on service tax and Rs.31,845/- as holding charges. Though at the time of booking of flat in 2013, possession was promised to be handed over within 90 days from date of issuance of allotment letter, but possession has not been handed over even after lapse of two years and as such complainants claim that they are entitled to interest @ 18% on the already deposited amount of Rs.13.00 lakhs with  OP. By claiming that owing to deficient services provided by OP, complainants suffered mental agony and harassment, this complaint filed for seeking direction to OP to handover possession of the flat alongwith other facilities, referred above. Interest @ 18% on the deposited amount of Rs.13.00 lakhs also claimed alongwith compensation for mental agony and harassment of Rs.2.00 lakhs and litigation expenses of Rs.11,000/-.

2.             In reply submitted by OP it is pleaded inter alia as if complainants have not approached the Forum with clean hands; complainants are not consumers within meaning of Section 2 (1) (d) of the Consumer Protection Act; complaint is false, vexatious and frivolous, filed for abusing process of law; complaint does not disclose any cause of action, more so when there is no deficiency of service or negligence on part of OP. Moreover, it is claimed that complaint in the present form not maintainable because same filed with ulterior motive of extracting money from OP. Complainants themselves failed to make payment in time, despite issue of various reminders to them by OP. As complainants themselves have not honoured the terms and conditions of agreement arrived at between parties and as such this complaint alleged to be filed by concealing true facts. Flat in question was purchased purely for commercial purpose i.e. for re-sale of same after finding upward trend in the market. Complainants themselves made substantial delay in paying installments, despite the fact that possession was offered much prior i.e. in October, 2014. As complainants themselves failed to get possession and that is why holding charges were imposed. Various other owners of flats in the same tower are putting stay and as such question of delay on part of OP does not arise. Even sale deeds in favour of other residents in the same tower had been executed and possession delivered to them. Maintenance of financial discipline is a condition precedent for implementation of terms and conditions of agreement, but complainants instead of honouring that obligation have tried to implicate the OP in this frivolous litigation. It is not denied that flat in question was booked by complainants by paying Rs.13.00 lakhs out of agreed sale consideration of Rs.14.00 lakhs. Admittedly Rs.2.00 lakhs were paid through cheque dated 29.09.2013 by complainants to OP and allotment letter dated 04.10.2013 was issued. Payment of service tax is a statutory compliance, which cannot be denied and as such OP is duty bound as per Govt. regulations to collect service tax from the consumer and pay the same to Govt. Admittedly demand of Rs.2,06,537/- as referred above was put forth by OP from complainants. Complainants have not paid anything for availing facility of club. However, it is claimed that no amount can be charged for providing facility of car parking. Sufficient car parking facility has been made available without charging anything. Out of 24 flats in the tower in which unit of complainants is situate, 15 flats are occupied and lift has already been installed. Demand raised by OP is as per terms and conditions of agreement.

3.             Counsel for complainants tendered in evidence joint affidavit of complainants Ex.CW-1/1 alongwith documents Ex.C-1 to Ex.C-18 and thereafter closed evidence.   On the other hand counsel for the OP tendered in evidence affidavit of Shri Subhash Bansal, Director of OP alongwith documents Ex.OP-1 to Ex.OP-4.

4.             Written arguments submitted by both the parties. Oral arguments heard and records gone through.

5.             From perusal of pleadings and written arguments, and also from oral arguments, it is made out that agreement Ex.C-3 was arrived at between parties. It is also not disputed that total price of flat having unit No.678 on 6^th floor was Rs.14.00 lakhs, out of which Rs.13.00 lakhs has been paid by complainants to OP. Reference of payment of booking amount of Rs.2.00 lakhs specifically made in Page-2 of Ex.C-3. Balance amount was payable in 3 installments i.e. one of Rs.11.00 lakhs on 25.10.2013, second of Rs.50,000/- on 25.11.2013 and balance amount of Rs.50,000/- was payable at the time of delivery of possession as per payment installment plan worked out at Page-2 of Ex.C-3. However, at Page-3 of Ex.C-3 it is mentioned as if possession of flat will be given only after execution of sale deed in favour of the allottee, who are complainants of present case. Page-5 of this agreement Ex.C-3 further provides that timely payment of installments indicated in the payment plan and installment schedule is essential, failing which for the delay caused in payment, OP Company will charge interest @ 18% per annum on the delayed payment. As per Clause-4 of terms and conditions contained in Page-5 of Ex.C-3, the allottee may avail loan facility from employer or financial institution. On availing of such loan, terms of the financing agency shall be exclusively binding and applicable on the allottee. So from these terms and conditions of agreement Ex.C-3 it is made out that payment of installments has to be made by complainants as per above referred schedule, failing which they are liable to pay interest @ 18% per annum on the delayed payment.

6.             Copy of receipt dated 26.11.2013 Ex.C-4 produced on record to show deposit of Rs.2.00 lakhs by complainants with OP through cheque dated 29.09.2013. In fact this amount is booking amount because reference of receipt No.334 (Ex.C-4) specifically made in Page-2 of Ex.C-3 as booking amount. Tripartite agreement Ex.C-6 between complainants, OP and Housing Development Finance Corporation Ltd. was executed showing as if complainants alongwith OP as builder jointly approached HDFC for loan amount of Rs.11.90 lakhs for part payment of sale consideration of Rs.14.00 lakhs of allotted flat No.678 at 6^th floor to complainants. Reference at Page-2 of Ex.C-6 made as if Rs.2.00 lakhs already paid by complainants to OP. It was due to consent given by OP as builder that HDFC granted loan of Rs.11.90 lakhs to complainants, as allottee, on 29.11.2013 is a fact borne from perusal of Page-3 of Ex.C-6. Being so, submission advanced by counsel for OP has no force that OP was not privy to contract of contracting loan by complainants from HDFC. Disbursement of Rs.11.00 lakhs out of this loan amount took place is a fact borne from copy of statement of account (Ex.C-7) of complainants maintained with HDFC Bank. So it is obvious that amount of Rs.13.00 lakhs had been paid by complainants to OP i.e. Rs.2.00 lakhs as booking amount and Rs.11.00 lakhs as amount disbursed by financer of complainant to OP. It is on account of this that complainants started paying EMIs of Rs.11,990/- as borne from contents of Ex.C-7. Ex.C-8 and Ex.C-9 are documents showing availing of loan facility by complainants from HDFC. Bone of contention remains as to whether offer of delivery of possession was made as per terms and conditions of agreement or as to whether non payment of entire sale consideration amount by complainants was the cause for non delivery of possession of flat by OP to complainants. Even dispute raised regarding the fact that promised facilities of elevator, car parking and club membership was not got provided by OP to complainants and that is why delivery of possession could not take place.

7.             After going through Page-5 of Ex.C-3 it is made out that specifications of flat are shown in the specification sheet. However, for any additional/better specifications for individual flat, as requested by the allottee, same will be provided, if technically feasible, but on payment of extra charges as demanded by OP. Completion of flat to be done as per completion date subject to receiving entire price and other payments as per terms of the allotment, is also a condition stipulated through Page-5 of Ex.C-3. Receipt of Rs.13.00 lakhs by OP from complainant during period from 01.10.2013 to 01.12.2013 also is acknowledged by OP by producing copy of statement of account as Ex.OP-1. If first payment of booking amount of Rs.2.00 lakhs made through cheque dated 29.09.2013, as referred above, then disbursement of Rs.11.00 lakhs contracted as loan by complainants from bank took place on 01.12.2013 through cheque dated 29.11.2013 is a fact borne from copy of statement of account Ex.OP-1. Even if amount of Rs.11.00 lakhs was payable by 25.10.2013 besides booking amount of Rs.2.00 lakhs as envisaged through Page-2 of Ex.C-3, despite that payment of Rs.11.00 lakhs took place on 29.11.2013 as borne from contents of Ex.OP-1. So certainly there was delay on part of complainants, of one month only in making payment of first installment of Rs.11.00 lakhs because said amount was payable by 28.10.2013 as per Ex.C-3. However, that delay of one month virtually stood condoned by OP itself by issue of letter Ex.OP-2 = Ex.C-10 dated 08.10.2014 because through this letter complainants were called upon to pay full and final amount for  flat No.678 without claiming of interest or holding charge. As OP itself through letter Ex.OP-2 = Ex.C-10 offered to handover possession of the booked flat without putting claim of any charges, and as such now OP estopped by its act and conduct from claiming amount of holding charges or the interest amount on the left out amount of Rs.1.00 lakh. Though Ex.OP-2 = Ex.C-10 are issued by OP on same date namely 08.10.2014, but difference of contents thereof is to the extent that payment of service tax @ 3.09% was claimed through Ex.C-10, but not through Ex.OP-2. On Ex.C-10 complainant No.1 recorded note in his hands for claiming that despite payment of Rs.13.00 lakhs by November, 2013, flat is not found ready for delivery for possession and that is why complainants not making payment of balance amount. Through this note recorded on Ex.C-10, it is claimed by complainants that on assurance of possession with lift and club in operation, payment of Rs.13.00 lakhs was made, but possession has been delayed, despite the fact that complainants are paying Rs.11,900/- per month as EMIs of the contracted home loan. These assertions contained in Ex.C-10 are not untrue because of above referred documentary evidence showing payment of Rs.11,900/- as EMI per month by complainants to their financer i.e. HDFC Bank. Through this endorsement in hands of complainant No.1 on Ex.C-10, it is further mentioned that OP should revert back to complainants if the lift and club are operational till date or not, but no revert back of the same on these issues given by OP to complainants and as such fault lay with OP in not divulging complainants about providing of facility of club and of lift. This is despite the fact that specifications schedule appended with Ex.C-3 specifically provides as if modern elevators in each block will be provided by OP. Reference to Page-10 of Ex.C-3 in this respect can specifically be made. Complainants have produced on record photographs Ex.C-15 to Ex.C-18 for establishing that at the time of their visit to the site premises, they found that facility of lift is not available. Though date of snapping of these photographs not mentioned, but protest recorded underneath Ex.C-10 shows that delay in giving possession on time is due to non operation of lift and club. Complainants through this writing dated 15.10.2014 endorsed on the foot of Ex.C-10 expressed willingness to get sale deed registered as and when lift and club facility becomes operational by making payment of balance due amount of Rs.1.00 lakh. This endorsement was sent by complainants through registered post to OP on 15.10.2014 is a fact borne from print of photostat of postal receipt available on top of Ex.C-10 itself. Even complainants through produced letter Ex.C-11 dated 05.05.2015 claimed that even after lapse of 18 months of paying of Rs.13.00 lakhs, lift is not made functional and as such present is a case in which complainants made payment of huge amount of Rs.13.00 lakhs at earliest after sanction of loan by HDFC Bank, but facility of lift not made functional to the satisfaction of complainants even untill 05.05.2015, when Ex.C-11 was sent by complainants to OP through registered post as borne from print of postal receipt on top of Ex.C-11 itself.  Despite this protest, OP has not informed complainants through any revert back regarding functional nature of club and the lift and as such fault lay with OP in not responding to the protest lodged by complainants on 15.10.2014 and 05.05.2015 as disclosed by contents of Ex.C-10 and Ex.C-11, discussed in detail above.

8.             Complainants have brought on record true facts by producing available material including letters sent by OP on 26.05.2015, 01.08.2015 and 26.10.2015 as Ex.C-12 to Ex.C-14, through which complainants were called upon to get possession of the flat as per terms of offer letter dated 08.10.2014 referred above. However, in none of these letters Ex.C-12 to Ex.C-14 or in any other letter or record produced by OP, it is mentioned that lift has been made operational. Being so, fault with OP is there in not divulging complainants about true picture of rendering facility of elevator as operational. That facility of elevator was to be provided as per specifications annexed with agreement Ex. C-3 as referred above, but intimation of operational nature of this lift never given to the complainants by OP and as such fault lay with OP. Even if OP has produced on record photographs Ex. OP-4 for showing that elevator was made operational, but  date of snapping of these photographs Ex.OP-4 (numbering 4) is not mentioned and as such submission advanced by counsel for OP  has no force that fault lay with the complainants in not getting delivery of possession of flat despite offer.

9.           There is no dispute regarding the fact that flat allotted to the complainants is on 6^th floor. If that be the position, then certainly for approach to that flat allotted to the complainants, facility of elevator is essential. Sale deeds Ex. OP-3 dated 05.01.2016 shows as if Flat No. 278 on second floor was completed by OP for handing over of possession to Kesar Singh. Likewise sale deed dated 23.02.2016 shows as if flat No.177 on first floor was completed for delivery of possession on 23.02.2016. Possession certificate in favour of Arun Kumar shows as if possession of Flat No. 280 on 2^nd floor was handed over on 07.12.2014 and likewise sale deed of flat No. 280 on second floor shows as if this flat was complete in all respect on 05.06.2014, when the sale deed was executed. Similarly sale deed of flat no.380 on 3^rd floor shows date of execution of sale deed as 24.04.2014, but that of flat No.379 on 3nd floor shows date of execution of sale deed as 26.03.2014,  but of Flat No.178 on first floor as 05.03.2015 etc. In view of these sale deeds it is vehemently contended by counsel for the OP that as the persons in whose favour these sale deeds executed started residing in their flats before issue of offer of possession letter Ex.OP-2 to complainants and as such fault lay with complainants in not getting possession. However, these submissions have no force because as already discussed above grievance of the complainants regarding non functional nature of elevator never redressed by conveying  the same to the complainants through issue of any letter in that respect and as such now OP cannot wriggle out from this deficiency by putting burden on complainants, who  have paid hefty amount of Rs. 13.00 lakhs out of total sale consideration amount of Rs.14.00 lakhs, more so when complainants after contracting loan from HDFC bank started paying loan installments and as such they will not shirk from getting possession of the flat just for escaping payment of nominal amount of Rs.1.00 lakh out of sale consideration amount. This circumstance also shows as if deficiency in service is on the part of the OP and not on the part of complainants.    

10.            In Clause-27 on Page-7 of Ex.C-3, it is mentioned that possession period agreed is only indicative and that company may offer possession before the agreed date. However, the allottee will have to take possession of the flat within 60 days of written offer of possession from OP, failing which flat will lie at the risk and cost of the allottee and thereafter allottee will be liable to pay holding charges at the rates to be intimated by the OP in addition to the proportionate share of other charges for delay in getting actual possession of the flat.  Though this Clause 27 favours case of OP, but at the same time it has to be taken into consideration that offer of possession date to be treated as indicative of delivery of possession as per Clauses 21 and 19 of Ex.C-3. As facility of elevator was to be provided along with the flat and as such it was for OP to divulge complainants that said facility of elevator was available or the elevator was operational on the date of offer of possession letter Ex.OP-2. However, despite protest raised by complainants, OP failed to disclose complainants about operational nature of elevator and as such for the fault of OP, benefit of clause 27 of Ex.C-3 cannot be availed by OP.  As possession of the flat with facility of elevator was to be handed over on completion of flat, but completion of flat was not done as per Clause-5 available on Page-5 of Ex.C-3 and as such in case enforcement of Clause 27 of Ex.C-3 ordered, then it will amount to giving undue benefit to the OP over complainants despite the fact that complainants had paid more than 80% of sale consideration amount at earliest after contracting loan with concurrence of OP.   

11.            Clause-8 (iv) available at Pages-5 and 6 of Ex.C-3 provides that in case OP provides facility of membership of recreational club in the complex at concessional rate, then allottee will have to pay usage charges as well as recurring annual/monthly charges as per terms of membership of club.  Being so, submission advanced by counsel for complainants has no force that club facility was to be made operational before delivery of possession of flat in question or that complainants were not to pay for availing club membership facility. Rather complainants have to pay club membership fee as per terms of Clause-8 of this agreement Ex.C-3, but after getting possession of flat. Major fault lay with OP in not making known to complainants about operational nature of elevator and as such for this fault of OP, it cannot charge interest on pending payment of Rs.1.00 lakh or even service tax or the interest on the service tax or holding charges or interest thereon, more so when in Ex C-3, nowhere it is provided that service tax, in addition to settled sale consideration amount of Rs.14.00 lakhs, will be payable by complainants. Rather total agreed sale consideration amount was Rs.14.00 lakhs and as such complainants not liable to pay service tax even though it is obligatory for OP to collect service tax and pay the same to the Govt. However, complainants must pay balance amount of Rs.1.00 lakh within specified period for getting sale deed executed. On such payment, OP required to hand over possession of the flat alongwith facility of car parking and modern elevator within 45 days. OP will be bound to execute sale deed in favour of complainants after receipt of balance sale consideration of Rs.1.00 lakh. For this fault of OP, complainants suffered mental agony and harassment and such they are entitled to somewhat reasonable amount of compensation for mental agony and harassment and also to litigation expenses. Holding of flat in question was not on account of fault of complainants, but same was on account of fault of OP, as discussed above because it rendered deficient services in not divulging complainants that elevator and car parking facility is ready alongwith constructed flat allotted to complainants. As provision for charging of service tax not made through agreement Ex.C-3 and as such OP not entitled to service tax charges or interest thereon from complainants because in case same done by OP then it will be charging it in violation of terms and conditions contained in Ex.C-3. Terms and conditions of agreement interpreted through judgments dated 8.5.2017 in Consumer Complaint No.210 of 2015, titled as Parag Kanthal and another Vs. M/s GBM Developers and Promoters; CC No.159 of 2015, titled as Raghvendra Kumar Gubrele and another Vs. M/s GBM Developers and Promoters by Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh were the same as were the terms and conditions of agreement of Ex.C-3 and as such it is vehemently contended that OP entitled to receive balance sale consideration alongwith service tax charges and club fee charges as well as holding charges. Even if terms and conditions interpreted through above referred judgments may be the same, but deficiencies existing in this case are different than those of deficiencies forming part of above referred judgments and as such benefit from above judgments available to OP only to the extent that it is entitled for balance sale consideration amount before execution and registration of sale deed and delivery of possession of flat. Even after going through Para-11 under heading “on merits” of affidavit Ex.OP-1/1 of Director of OP it is made out that car parking charges admittedly are not chargeable and nor they have been charged despite the fact that sufficient car parking facility is made available. This admission of OP binds him and as such OP will not charge anything for providing one car parking facility to complainants as per Ex.C-3. However, facility of modern elevator has to be provided by OP to complainants as per specifications available at page 10 of Ex C-3, but without charging anything from the complainants.

12.            No other worth mentioning point argued.

13.            As a sequel of above discussion, complaint allowed in terms that the complainants will pay balance amount of Rs.1,00,000/- within 30 days from the date of receipt of copy of the order. Complainants will also be liable to pay club membership fee. OP required to hand over possession of the flat  along with facility of car parking and modern elevators within 45 days after receipt of balance sale consideration of  Rs.1,00,000/-. Complainants will have to pay club membership fee as per terms of Clause- 8 of agreement Ex.C-3, but after getting possession of the flat. Sale deed will be executed by OP in favour of complainants immediately after receipt of balance sale consideration.  OP will not be entitled to claim any of the following amounts:-

1. Interest on the pending payment of Rs. 1,00,000/-.
2. Service tax
3. Interest on  service tax.
4. Holding charges.

               Compensation for mental agony and harassment of Rs.35,000/- (Rs. Thirty Five Thousand only) and litigation expenses of Rs.5,000/- (Rs. Five Thousand only) more allowed in favour of complainants and against OP.  Payment of these amounts of compensation and litigation expenses be made within 30 days from receipt of certified copy of order. Certified copies of the order be supplied to the parties as per rules. File be indexed and consigned to record room.

  Announced                                  

  19.06.2019.

                                        (G.K. Dhir)

                                                                President

(Mrs. Natasha Chopra)

Member