Chandigarh

DF-I

CC/354/2021

Shyam Sunder Garg - Complainant(s)

Versus

Indian Railway Welfare Organization - Opp.Party(s)

Vijay Kumar Pal

06 Sep 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/354/2021
Date of Institution	:	28/05/2021
Date of Decision	:	06/09/2023

 

Shyam Sunder Garg s/o late Sh. Hanuman Das Chaudhary, resident of House Number 5154, Ground Floor, Category 1, Modern Housing Complex, Manimajra, Chandigarh 160101.

… Complainant

V E R S U S

1. Indian Railway Welfare Organization through its Managing Director, Railway Offices Complex, Shivaji Bridge (Minto Bridge), New Delhi-110001.
2. General Manager, Northern Zone, Indian Railway Welfare Organisation, Chandigarh Railway Station, Chandigarh.

… Opposite Parties

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	MRS. SURJEET KAUR	MEMBER
	SHRI SURESH KUMAR SARDANA	MEMBER

                                                                               

ARGUED BY	:	Ms. Shaveta Sanghi, Advocate for complainant
	:	Sh. A.K. Tiwari, Advocate for OPs

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by Shyam Sunder Garg, complainant against the aforesaid opposite parties (hereinafter referred to as the OPs).  The brief facts of the case are as under :-

1. It transpires from the allegations as projected in the consumer complaint that the OPs have developed a residential group housing project under the Railway Group Housing Scheme in the name and style of “Rail Vihar” (Phase II), VIP Road, Zirakpur, District SAS Nagar, Mohali, Punjab (hereinafter referred to as “subject project”). On being impressed by the advertisement brochure and publicity about the project, complainant had shown his interest in purchasing a flat and thereby booked a flat with the OPs by submitting booking application and accordingly flat No.A-4/201, Type Z-IV  (hereinafter referred to as “subject flat”) was booked in the name of the complainant and his wife and in this manner the complainant became joint owner of the subject flat. Subsequently, OP-1 vide letter dated 7.6.2012 (Annexure C-1) had informed about the booking of the subject flat with the payment plan and the same was allotted to the complainant by OP-1 vide allotment letter dated 12.11.2015 (Annexure C-2).  In the aforesaid allotment letter, it was specifically mentioned that handing over of possession will start from 1.2.2016 and possession must be taken by 30.4.2016. Though as per the booking letter dated 7.6.2012, cost of the subject flat was ₹42,00,000/- + service tax, but, subsequently OP had enhanced the cost upto ₹46,80,000/- + service tax vide allotment letter (Annexure C-2).  However, the complainant had paid the total sum of ₹49,98,211/- inclusive of interest on delayed payment. In addition to the aforesaid amount of ₹49,98,211/-, an amount of ₹2,23,109/- was also paid by the complainant towards the maintenance fund, additional maintenance charges, depreciation reserve fund charges demanded by the OPs vide letter dated 12.11.2015.  The possession with respect to the subject flat was offered by the OPs to the complainant vide possession letter dated 2.6.2016 (Annexure C-3). Though the OPs had assured that the possession will be handed over to the complainant latest by 30.4.2016, but, the same was offered by them on 2.6.2016 only i.e. after delay of 32 days in handing over the actual possession of the subject flat.  It was also acknowledged by the OPs vide possession letter (Annexure C-3) that the complainant has made full payment and the possession may be handed over to him.  Thereafter OPs had issued handing/taking over certificate dated 9.6.2016 (Annexure C-4) qua the subject flat to the complainant.  After some time, the complainant came across a notice appearing on the website of the OPs, indicating about dues outstanding against the allottees and alongwith the notice list of the allottees (Annexure C-5) against whom dues were outstanding had also been annexed, showing the name of the complainant also. Thereafter the complainant approached the local office of OP-2 to provide the copy of letter and accordingly draft of said letter dated 4.10.2019 (Annexure C-6) was handed over to him.  As per the said letter (Annexure C-6), OPs had made additional demand for a sum of ₹1,42,000/- on the pretext of “demand of subsidy for EWS houses” and “additional demand for escalation in the prices of labour and material”.  In fact, the said letter was not specifically addressed to the complainant and thereafter the complainant made request to the OPs to supply the said letter to him, but, they failed to furnish the same.  Since the entire payment qua the subject flat has already been deposited by the complainant and nothing remains to be paid, OPs had explicitly admitted the same vide letter dated 2.6.2016 (Annexure C-3) and thereafter possession had also been handed over to the complainant on 9.6.2016, it was unfair on the part of OPs to raise additional demand later on without even seeking approval of any additional facility after handing over the possession to the complainant.  In this manner, demand of any charges by the OPs unilaterally after handing over the possession without associating the complainant and without seeking prior approval from the owner, is illegal, unwarranted and arbitrary and the same amounts to deficiency in service and unfair trade practice.  OPs were requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.
2. OPs resisted the consumer complaint and filed their written version, inter alia, taking preliminary objections of maintainability, jurisdiction, non joinder of necessary parties and also that the matter was required to be referred to arbitration.  However, it is admitted that the subject flat was allotted to the complainant regarding which possession had also been handed over to him, but, denied that the demand notices were not sent to him as alleged.  It is alleged that letter dated 24.10.2016 (Annexure R-5) alongwith reminders were sent to the complainant on the given address. The said demand was raised as per the scheme cum technical brochure and undertaking given by the complainant.  On merits, the facts as stated in the preliminary objections have been reiterated. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
3. In rejoinder, complainant re-asserted the claim put forth in the consumer complaint and prayer has been made that the consumer complaint be allowed as prayed for.

2. In order to prove their case, parties have tendered/proved their evidence by way of respective affidavits and supporting documents.
3. We have heard the learned counsel for the parties and also gone through the file carefully, including the written arguments.
   1. At the very outset, it may be observed that when it is an admitted case of the parties that the subject flat was booked by the complainant and his wife with the OPs, regarding which information about the booking was also given by the OPs to the complainant vide Annexure C-1 and thereafter the subject flat was allotted to the complainant and his wife, Smt.Monica Garg vide allotment letter (Annexure C-2) and possession letter (Annexure C-3) was also issued to the allottees and thereafter handing/taking over certificate dated 9.6.2016 (Annexure C-4) was executed between the parties, making further clear that the subject flat was transferred in favour of the complainant and his wife, free from all encumbrances, on receiving entire payment from complainant and his wife by OPs, the case is reduced to a narrow compass as it is to be determined if the subsequent additional demand to the tune of ₹1,48,390/-, raised by the OPs from complainant and his wife vide notice (Annexure C-6/R-5), which has already been deposited on 11.11.2022 by the complainant and his wife under protest, as is clear from the receipt annexed with Annexure A filed by OPs, is illegal, wrong, arbitrary and the said act amounts to  unfair trade practice on the part of OPs and the complainant is entitled to the reliefs prayed for in the consumer complaint, as is the case of the complainant, or if the OPs had raised the aforesaid demand in pursuance to the terms and conditions of the brochure as well as undertaking given by the complainant and the consumer complaint is liable to be dismissed, as is the defence of the OPs. 
   2. In the backdrop of the foregoing admitted and disputed facts on record, one thing is clear that the entire case of the parties is revolving around the terms and conditions as set out in the brochure (Annexure R-1) and the undertaking (Annexure R-3) given by the complainant and the same are required to be scanned carefully.
   3. It has been contended on behalf of the complainant that as the OPs had already been conveyed about the change of address of the complainant to Bangalore through letter dated 25.5.2016 (Annexure R-8), but, despite of the same, OPs intentionally sent the notices on the old address and the complainant was not aware of the said notice/reminders sent by the OPs through which additional demand was raised. 
   4. Perusal of the letter dated 25.5.2016 (Annexure R-8) indicates that the same was sent by the complainant to the OPs qua his address whereas the first letter of demand was sent by the OPs to the complainant on 24.10.2016 making it clear that the said letter was not sent to the complainant on his given address, which was duly intimated to the OPs. 
   5. On behalf of OPs, reliance has been placed on clause 9.1 & 9.4 of the brochure (Annexure R-1) which refers about the schedule of payment as under :-

        “9.1  On selection for allotment of flat and issue of the booking letter, the Allottee will be required to make the payments in accordance with the Schedule given in Annexure-II.  This cost is based on estimate of the cost of the Project based on present day prices and is subject to escalation during construction.  As and when the estimate is revised, the installment amount may also be revised for the prospective payments.  IRWO reserves the right to change schedule of payment depending upon the progress of work or any other reasons.  Allottees shall be bound by such revised schedule.”

“9.4 In case of delay of payment of any installment of more than 7 days beyond the due date, delayed payment charges @ 12.5% will be charged extra on monthly basis; part month of delay will be taken as full month delay. If an allottee does not pay two consecutive instalments on due dates after issue of Booking letter, a notice will be served to pay the Installments within 90 days with delayed payment charges. In case the allottee does not make payments after having been served a notice about default of payment of two installments, a final notice would be served to him/her to make payment within 30 days. If the payment is not received by the due date, his/her allotment will be treated as cancelled without further intimation and the booking money/ Installment amount will be refunded after deducting the penalty amount as mentioned in Para 20 of IRWO General Rules.”

6. Perusal of the aforesaid clauses makes it clear that in case of delay of payment of any installment of more than 7 days beyond the due date or in case the allottee does not pay two consecutive installments on due dates after issuance of booking letter, a notice will be served to pay the installment within 90 days and also that the project accounts may not be closed at the time of occupation of houses by the allottees. However, the aforesaid clauses have no application in the present case as it is not the defence of OPs that the complainant has failed to make delayed payment, rather the possession letter (Annexure C-3) makes it clear that the entire payment due on the date when the said letter was issued i.e. 2.6.2016 had already been paid by the complainant to OPs regarding which reference has also been made in the said letter as under :-

“…….He has made full Payment. All documents required from the allottee, have been received.  The allottee, may be handed over the possession of the DU allotted to him/her.”

7. It has further been contended on behalf of the OPs that even the complainant had given undertaking that all taxes or other charges which Govt. may impose or any legal arbitration awards that may be made now or in future will be borne by the complainant.  The relevant portion of the undertaking (Annexure R-3) is reproduced below for ready reference :-

“i)    All levies/taxes/any other charges which any Government Departments or Authority may impose or any legal or arbitration awards that may be made now or in future, will be borne by me/us.”

8. However, this undertaking again is not going to help the OPs since the same speaks about levies, taxes, any other charges, which any Govt. department or authority may impose or any legal or arbitration awards that may be made now or in future will be borne by the deponent (i.e. the complainant).  Since demand for subsidy amount notice (Annexure R-5) has given details for additional demand on account of subsidy amount to compensate the cost of EWS houses plus additional demand of expenditure incurred on account of escalation in prices of building material and labour at IRWO housing projects was not included at the time of revision of cost as the actual amount was not known at that time, the same is not even covered under the aforesaid undertaking.  The relevant portion of the aforesaid letter (Annexure R-5) is reproduced below for ready reference :-

        “Further some additional facilities have been provided based on safety requirements and request from most of the allottees. Some of these are mentioned below:-

A.     Providing and fixing steel railing in stairs of Type-III and Type-IV DUs.

B.     Providing and fixing M.S. Safety Gates at the main entry gate of each DU.

C.     Laying of communication lines for safety purposes from lift cars to the Security hut.

D.     Additional Fire Safety provision in Type-II, EWS and Community Centre on direction of Fire Authorities.

E.     Provision of Aluminum Grills in windows, not opening into balconies of Type III, IV DUs for safety.

F.     Construction of boundary wal in a length of 75 m adjoining Penta Homes Society.

        Overall considering the demand raised by our letter dated 3-06-16 on account of EWS and on account of above items, the increase in cost of different types of DUs are indicated below:-

TABLE

Type of DU	No. of DUs	Super built area of DU in SQ.M	Demand Subsidy for EWS Houses			Additional Demand for Escalation etc.		Total demand per DU (Col.5+ Col.7)
			Rate per Sq.M in Rs.	Amount in Rs.	Amount in Rs.		In Rs.
II	99	72.668	152/-	11,046	65,954		77,000
III	224	109.931	152/-	16,710	1,00,290		1,17,000
IV	76	134.327	152/-	20,418	1,21,582		1,42,000

 

9. Even the aforesaid demand raised by the OPs through letter is not covered under the aforesaid undertaking given by the complainant, especially when the said demand was not raised by the OPs on account of taxes etc. or legal arbitration.  Moreover, when it has come on record that the OPs had already received the entire amount from the complainant as the total cost of the flat to the tune of ₹49,98,211/- inclusive of interest on delayed payment as cost of developing the unit and in addition to that had also received an amount of ₹2,33,109/- towards the maintenance fund etc. on the day when the complainant was asked to take possession of the subject flat vide possession letter (Annexure C-3), it is clear that the subsequent demand raised by the OPs on the ground that they were not aware of the actual cost of the flat/project is illegal, arbitrary and amounts to unfair trade practice on their part, especially when it has come on record that the said demand raised by OPs has neither been covered under brochure (Annexure R-1) nor under the undertaking (Annexure R-3) given by the complainant and also not covered under clause 2(e) of handing/taking over certificate (Annexure C-4), which only speaks about maintenance money and the complainant had undertaken to pay his share of expenses to the society in the event  of review due to any reason.
10. The consumer complaint is further resisted by the OPs on the ground that the complainant, if aggrieved,  was required to approach the arbitrator against the OPs and the consumer complaint of the complainant is not maintainable before this Commission is also without merit as law on this point has already been settled by the Hon’ble Apex Court in the case of Aftab Singh Vs. Emmar MGF Land Limited & Anr., Consumer Case No.701 of 2015 decided on 13.7.2017 in which it was held that arbitration clause in the agreement between the complainant and the builder cannot circumscribe the jurisdiction of the Consumer Fora notwithstanding the amendment made to Section 8 of Arbitration Act.
11. In view of the aforesaid discussion, it is safe to hold that the complainant has successfully proved the cause of action set up in the consumer complaint and the present consumer complaint deserves to succeed.

4. In the light of the aforesaid discussion, the present consumer complaint succeeds, the same is hereby partly allowed and OPs are directed as under :-

1. To refund the amount of ₹1,48,390/- deposited by the complainant as additional installment on 11.11.2022 alongwith interest @ 9% per annum from 11.11.2022 onwards and not to raise such demand in future against the complainant.
2. to pay an amount of ₹20,000/- to the complainant as compensation for causing mental agony and harassment to him;
3. to pay ₹10,000/- to the complainant as costs of litigation.

5. This order be complied with by the OPs within thirty days from the date of receipt of its certified copy, failing which, the payable amounts, mentioned at Sr.No.(i) & (ii) above, shall carry interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.
6. Pending miscellaneous application(s), if any, also stands disposed of accordingly.
7. Certified copies of this order be sent to the parties free of charge. The file be consigned.

Announced 06/09/2023 hg			Sd/- [Pawanjit Singh] President
			Sd/- [Surjeet Kaur] Member
			Sd/- [Suresh Kumar Sardana] Member