KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

C.C. No. 123/2016

JUDGMENTDATED: 29.11.2021

PRESENT : 

HON’BLE JUSTICE SRI. K. SURENDRA MOHAN    : PRESIDENT

SRI.T.S.P. MOOSATH                                                       : JUDICIAL MEMBER

SRI.RANJIT. R                                                                   : MEMBER

SMT. BEENA KUMARY. A                                              : MEMBER

SRI. RADHAKRISHNAN K.R.                                        : MEMBER

COMPLAINANTS:

1. Dr. Johny Cyriac, 36/1839 A (CC/62, 1622), Parakalampatt, Elamkulam Road, Kaloor, Kochi-682 017.

2. Saramma Francis, 36/1839 A (CC/62, 1622), Parakalampatt, Elamkulam Road, Kaloor, Kochi-682 017.

                       (By Advs. Joby Cyriac & Bipin M.V.)

                                                Vs.

OPPOSITE PARTIES:

1. DLF Southern Towns Pvt. Ltd., (Reg. Office), 1-E, Jhandewalan Extn., Naaz Cinema Complex, New Delhi-110 055, represented by its Managing Director.
2. DLF Southern Towns Pvt. Ltd. (Zonal Office), P.D.R Bhavan, Palliyil Lane, Foreshore Road, Kochi-682 016 represented by its Zonal Manager.
3. New Town Heights DLF-Kakkanad, Opp: Doordarshan Kendra, Sea Port, Airport Road, Kakkanad P.O, Kochi-682 030 represented by its Project Manager. 

(By Advs. M/s Menon & Pai)

Additional Opposite party:

4. The Secretary, New Town Heights, Kakkanadu Condominium Owners Welfare Society, Registration No. EKM/TC/612/2015, Opp: Doordarshan Kendram, Seaport-Airport Road, Kerala-682 037.

JUDGMENT

SRI.RANJIT. R: MEMBER

This complaint is filed seeking a direction against the builder to give delivery of possession of the flat allotted to the complainants along with Conveyance Deed within a period to be fixed by this Commission, to pay compensation for the delay in delivery of possession of the apartment and 12% interest on Rs. 33,44,880.21 with effect from 24.06.2012, to refund the amount which was alleged to be illegally collected under various heads from the complainant and costs of the proceedings.

2.  The case of the complainants as detailed in the complaint, in brief, is that the 1^st complainant is the son-in-law of 2^nd complainant.  Considering the proximity with the school where the 1^st complainant’s children are studying, the complainants entered into an agreement with the 1^st opposite party builder for purchase of a residential flat under the project named “New Town Heights DLF-Kakkanad”.  The total sale price of the flat having a super built up area of 1236 sq. ft was fixed at Rs. 32,53,480/- which includes the cost of parking space. The complainant booked the flat attracted by the advertisement published by the opposite parties 1 to 3.  They proposed to construct a multi-storied luxury apartment complex with exclusive life style privileges at Kakkanad, Kochi.  The proposed project also offered scenic beauty of a mountain valley with gently sloping hills and lush green surroundings.  Opposite parties 1 to 3 also offered among other things facilities such as self-contained residential estate, signature tower, 3 floors of shopping plaza, club house having an area of 70000 sq. ft., video surveillance, 24 hours power back-up, electricity substation, RO Plant for water treatment, bank ATM, office space, broadband internet etc.  Several other facilities were also offered in their brochure.  Accordingly attracted by this advertisement made in the brochure the complainant applied for allotment of 2 BHK flat having an area of 1236 sq. ft.  They paid an amount of Rs. 4,00,000/- on 30.09.2008.  The payment plan of the opposite parties 1 to 3 was spread over a period of 2½ years.  The terms and conditions provided that in the event the allottee makes default in payment of instalments, he has to pay the defaulted amount with interest at 15% for the first 90 days and thereafter interest at 18% for any delay beyond 90 days.  As there was some delay on the part of the allottees/complainants in paying the instalments, the complainants were made to pay 18% compound interest on the amount due on account of delay in payment of instalments due to the opposite parties 1 to 3.  The complainants paid an amount of Rs. 4,00,000/- at the time of booking. Thereafter an agreement for sale was executed on 24.06.2009.  The total amount payable as per the agreement is Rs. 32,53,480/- which included Rs. 2,50,000/- for one car parking.  The complainants paid a total sum of Rs. 33,44,880.21 which includes Rs. 65,100.99, paid interest of 18% for the delayed payment.  The opposite parties 1 to 3 did not complete the construction of the apartment within the stipulated period.  After a long delay they issued a communication dated 10.11.2015 offering delivery of possession of the flat subject to the payment of an additional amount of Rs. 9,16,289.94 towards cost of increase in area, electricity installation, tax, car parking charges etc. and a further sum of Rs. 1,22,448.80  towards interest due for maintenance security, service tax etc.  It is alleged that the above demands made by the opposite parties 1 to 3 are illegal, arbitrary and without any justification.  According to the complainants the opposite parties 1 to 3 have appropriated a sum of Rs. 2,50,000/- towards car parking facility as the car parking is the obligation of the builder.  They further contended that they demanded Rs. 7,000/- towards club annual subscription, Rs. 30,000/- towards club membership and Rs. 20,000/- towards club security deposit without providing any club facility.  The above demand is illegal as the club was not provided by the opposite parties nor any facilities provided by the opposite parties 1 to 3.  The contention of the complainants is that opposite parties 1 to 3 have no authority to raise any demand in the name of club as the formation of the club, membership fee and other expenses relating to the same are the prerogative of the residents and not that of the builder.  Builder had also claimed Rs. 2,64,870/-towards increase in area and service tax of that area which amounts to Rs. 10,186/-.  The complainant’s case is that the amount towards so called increase in area without obtaining the prior consent of the allottee is illegal.  They further state that the demand made by the opposite parties 1 to 3 for an amount of Rs. 2,00,000/- towards permission for electricity, etc. is also impermissible as per clause 1.12 of the agreement.   As per the clause the allottee has to pay only Rs. 1,00,000/- towards installation of electricity, water service and other incidental charges.  The opposite parties have no authority to charge any service tax as no service tax applies to a building under construction.  Even though the complainants requested the opposite parties 1 to 3 to provide fresh statement of account after deleting the illegal claims made by them no reply was given by them.  The opposite parties failed to deliver the possession of the apartment within 3 years from the date of agreement, instead they raised additional demand as referred above.  The complainants state that most of the facilities as stated in the brochure such as electricity substation, RO plant for water treatment, bio gas plant, bank ATM, Wi-Fi, broadband internet, fixed line communication etc. are not made available.  They have also failed to construct the signature tower, shopping plaza, club house etc.  Hence the complainant requested them to make available the above referred facility before delivering the possession of the apartment.  The complainant alleged that the following claims made by the opposite parties 1 to 3 are unfair and illegal.  The alleged illegal claims made by the opposite parties are Rs. 12,500/- demanded by them for parking space, Rs. 7,000/- for club annual subscription, Rs. 30,000/- for club membership, Rs. 20,000/- for club security deposit, Rs. 11382/- demanded towards service tax, Rs. 2,64,870/- demanded for the cost of increase in area, Rs. 10,186/- the service tax of Rs. 12,666/- for the flat under construction and an amount of Rs. 2,00,000/- towards obtaining permission for electricity, water supply etc.  Complainants filed this complaint praying for direction to the opposite parties 1 to 3 to grant delivery of possession of the flat to them along with Conveyance Deed, to pass an order directing the opposite parties to pay compensation for delay in delivery of possession of the apartment at 12% interest on Rs. 33,44,880.21 with effect from 24.06.2012 till delivery of the apartment etc. 

3.  Opposite parties 1 to 3 entered appearance on notice and filed a joint version challenging the maintainability of the complaint on two grounds.  They contended that since the disputes are arising out of the agreed terms and conditions of the agreement between the parties and as per clause 49 of the agreement which stipulates that any dispute between the parties shall be settled through arbitration, the complaint is not maintainable.  They further contended that the complainants are not consumers as the construction made by the complainant relates to 1^st complainant’s business activity and therefore it falls under the category of commercial purpose which is outside the purview of the Consumer Protection Act.  On merits the opposite parties 1 to 3 have contended that the contents of the brochure cannot be styled as offer.  The contents of the brochure are tentative information about the project and the complainant cannot claim it as a matter of right.  Complainant has to go by the Apartment Buyer’s Agreement.  The complainants cannot make any claim against them which is not in their agreement.  The super area of the apartment as stated in the agreement is tentative and the final super area of the apartment shall be confirmed only after construction of the said apartment is completed and the completion certificate is granted by the Govt. authority and the total price payable for the apartment shall be recalculated upon confirmation by the opposite party for any increase or decrease in the super area.   If there is increase in super area the allottee had agreed under the agreement to pay for the increase in super area.  The complainant was a gross defaulter in payment of instalments as per the payment schedule and hence the opposite parties are empowered to charge interest for the delayed payment and defaulted payments which is as per the terms of the agreement.  The allegation of the complainant that the complainants were not aware of the terms and conditions of the agreement is baseless as the 1^st complainant had signed the application for allotment by sale which contains similar terms and conditions as stipulated in the Apartment Buyer’s Agreement.  Thus, the complainants were well aware of the terms and conditions contained in the application for allotment by sale.  Since the complainants had agreed to the terms of the Apartment Buyer’s Agreement, they cannot evade the liability of payment under the Apartment Buyer’s Agreement.  The final statement of account shows the payment and dues under different heads in terms of the agreement only.  As per the agreement the complainant had agreed to make payment of Rs. 7,000/- towards annual club charges, Rs. 30,000/- towards membership fee for the first two years and Rs. 20,000/- towards refundable security deposit.  The construction of the club building is completed.  The liability to pay the club charges is made mention of in clause 1.14 of the agreement.  As per clause 1.9 of the Apartment Buyer’s Agreement opposite parties 1 to 3 are entitled to raise demand for increase in area.  The complainants are liable to make payment of Rs. 2 lakhs towards permission of electricity, water supply installation and connection of utility services as per clause 1.11 of the agreement read with clause 1.12 of the agreement.  The provisions of service tax are made applicable to the payments effected on or after 1^st July 2010 by the Central Govt. as per Notification No. 29/2010 dated 22.06.2010 issued by the Department of Revenue, Ministry of Finance Govt. of India.  The delay in completion of the construction occurred on account of the shortage in availability of labour, shortage of sand, cement and steel in the market.  In spite of the earnest efforts of the opposite parties 1 to 3, on account of shortage of sand, cement and steel in the market the stock got exhausted and time was consumed and lost for procuring these materials.  However opposite parties 1 to 3 have completed the construction and obtained occupation certificate in respect of the apartments and the process of handing over of the blocks is going on.  As per clause 10.4 of the Apartment Buyer’s Agreement the complainants are not entitled to compensation as the complainants are defaulters under the terms of the agreement.  Only if the complainants had paid the instalments in time opposite parties 1 to 3 have to pay compensation and that too @ Rs. 5 per sq. ft of the super area of the said apartment per month and if the period of such delay is beyond six months which is permitted as per the agreement.  The complainant was not ready to clear the huge outstanding dues to the opposite parties 1 to 3.  Thus, the complainants have deliberately breached the terms and conditions under the Apartment Buyer’s Agreement and has failed to perform their part of the contract.  The complainants are liable to make the payment as demanded by the opposite parties as per the terms and conditions of the Apartment Buyer’s Agreement.  Opposite parties 1 to 3 are not liable to pay any amount as claimed by them in the complaint.  The complainants had wilfully defaulted the payment of instalments knowing fully well about the consequences in spite of several demand notices and reminders sent by the opposite parties 1 to 3 from time to time.  The complainant was not ready and willing to pay the instalments as per the payment schedule and they are raising false and untenable grounds which are against the terms of the agreement.  Since the complainants are gross defaulters, they are not at all entitled for any compensation as claimed by them.  Since the complainants have deliberately violated the terms and conditions of the agreement, they are not entitled to get any relief as sought for in the complaint.  Hence they prayed for dismissal of the complaint. 

4.  On the side of the complainants, the 1^st complainant gave oral evidence as PW1.  10 documents were marked on the side of the complainants as Exts. A1, A1(a) to A9.  Out of which A1 to A6 were produced along with proof affidavit and A1(a), A7 to A9 were produced by way of additional proof affidavit.  The authorized representative of the opposite parties gave oral evidence as DW1 and Exts. B1 to B22 were marked on their side.  The complainants had filed an interim application i.e. I.A. No. 1444/2016 praying for the issue of an interim order directing opposite parties 1 to 3 to deliver possession of the flat to the complainants. The complainants agreed to deposit the disputed amount before this Commission subject to final orders.  This Commission vide separate order dated 20.09.2017 ordered that on the complainants depositing an amount of Rs. 14,12,612.56 before this Commission, opposite parties 1 to 3 shall hand over the possession of the flat which is the subject matter of the agreement dated 24.06.2009 to the complainants.  The amount shall remain in deposit subject to final disbursement as per the judgment in this case.  The aforementioned amount was deposited by the complainants before this Commission and accordingly the opposite parties 1 to 3 offered possession fixing the date as on or before 11.01.2018 vide Ext. A6 and after rectifying some shortcomings, the possession was handed over on 07.07.2018 as evident from Exts. A8 and A9 acknowledgment letter.  However, though the opposite parties 1 to 3 have handed over possession on 07.07.2018, the Flat Owners’ Association namely ‘New Town Heights, Kakkanadu Condominium Owners Welfare Society’ did not issue Electronic Access Card to the complainants, enabling them to have a free access to their flat.  This was due to the fact that there was huge arrears or the common area charges and IBMS for a total amount of Rs. 2,43,242.33 from February 2016 to October 2019 to be paid to the Welfare Society.  Being aggrieved by this, the complainants filed three interim applications along with an affidavit such as (i) to implead flat owners’ association as additional 4^th opposite party, (I.A. No. 3/EKM/2019) (ii) to transfer a total amount of Rs. 2,43,242.33 in favour of the additional 4^th respondent from the amount deposited before this Commission (I.A. No. 4/EKM/2019) (iii) to direct the additional 4^th respondent to issue Access Card to the complainants forthwith (I.A. No. 5/EKM/2019).  The opposite parties 1 to 3 opposed those prayers, except the impleading petition, contending that the amount of Rs. 1,27,527.33 claimed by the additional 4^th opposite party towards liquidated damages (holding charges) does not form part of the maintenance charges payable to them.  They further contended that the said amount is actually due to the opposite parties 1 to 3.  In view of the above contention, this Commission impleaded the Flat Owners’ Association as 4^th additional opposite party and passed two interim orders directing the office to transfer an amount of Rs. 1,15,670/- to the 4^th opposite party and directed the complainants to pay balance amount out of their own pockets subject to the adjudication of this complaint and directing the additional 4^th opposite party to issue access card to the complainants on receipt of the amount demanded.  In compliance of the directions, the complainants were issued access card by the 4^th opposite party on receipt of the arrear amount. 

5.  Heard the counsel for the complainant and opposite parties.  The following points arise for consideration. 

1. Whether the complaint is maintainable?
2. Whether there is unfair trade practice or deficiency in service on the part of opposite parties?
3. Whether the complainant is entitled to get any compensation?  If so, what is the quantum?

6.  Point (i):- The specific contention of the opposite parties1 to 3 is that the present dispute is arising out of the agreed terms and conditions between the parties.  As per clause 29 & 49 of the Apartment Buyer’s Agreement it is provided that “All or any dispute arising out of or touching upon or in relation to the terms of this agreement including the interpretation and validity of the terms thereof and the respective rights and obligation of the parties shall be settled amicably by mutual discussions failing which the same shall be settled through arbitration” and hence the complaint is not maintainable.  However, Sec. 3 of the Consumer Protection Act provides that the provisions of this Act are in addition to the other remedies available for the consumers.  Therefore, the arbitration clause in the buyer’s agreement does not bar the complainant from approaching the Consumer Commission, if there is unfair trade practice or deficiency in service on the part of the opposite parties 1 to 3.  The specific contention of the complainant is that opposite party builder has committed unfair trade practice and deficiency in service.  The National Commission in the matter of “Sateesh Kumar Pandey& others Vs. M/s Unitech” decided on 8^th June 2015 held that a complaint filed by the consumer before the Consumer Fora will be maintainable despite there being an arbitration clause in the agreement to refer the dispute to arbitration.  The National Commission in this judgment had considered the dictum laid down by the Hon’ble Supreme Court of India in the matter of “National Steel Corporation Vs. Madushoodan Reddy and another reported in 2012 II SC 506” wherein it was held that Sec. 3 of the Consumer Protection Act is an additional remedy available to the consumer and even if there is arbitration clause in the agreement made between the parties, the complainant can choose the consumer forum to resolve his grievances.  In the light of the above, the contention raised by the learned counsel for the opposite parties 1 to 3 is only to be rejected.  We do so. 

7.  The next contention is that complainants are not consumers as they had purchased the property as an investment.  But the specific case of the complainants in the complaint as well as in the proof affidavit is that they purchased the flat considering its proximity to the school in Kakkanad where the children of the 1^st complainant are studying.  Moreover, opposite parties 1 to 3 have failed to prove the allegation that the apartment was an ‘investment’ of the 1^st complainant as alleged by them.  In the light of the above, the contention raised by the opposite parties 1 to 3 is only to be rejected.  We do so. 

8.  The complainant’s first allegation levelled against opposite parties 1 to 3 as testified by PW1 is that opposite parties 1 to 3 failed to deliver possession of the apartment within 3 years from the date of agreement as agreed.  As per the agreement the opposite parties had to complete the construction before 24.06.2009.  Instead they offered to deliver possession only on 11.01.2018 and could deliver actual possession only on 07.07.2018 subject to the payment of an additional demand of Rs. 14,12,612.56 towards increase in super area, electricity installation, service tax, maintenance of security, parking area etc.  Therefore, the complainants alleged that clause 10.4 of the agreement was unfair and arbitrary.  As per clause 10.4 of the agreement if the opposite party is not in a position to deliver the possession of the apartment within 36 months from the date of execution of the agreement the allottee shall be entitled to compensation @ Rs. 5/- per sq. ft. of the super area of the apartment per month for the period of such delay beyond 36 months.  Complainant alleged that the limit of compensation of Rs. 5/- per sq. ft of the super area of the apartment per month as stated in clause 10.4 of the agreement was unfair and arbitrary since the opposite parties charged interest @ 18% for the default in payment of instalments due to the opposite parties beyond 90 days.  The opposite parties have thus collected Rs. 33,26,305.88 as against the total agreed cost of Rs. 32,53,480/-.  The contention of the complainant is that for the delay in delivery of possession the complainant is entitled to get Rs. 2,22,837/- which is calculated @ 12% interest on the sum of Rs. 3,34,880.21 the amount already collected by the opposite parties with effect from 24.06.2012 the agreed date of delivery of possession till the actual possession was handed over on 07.07.2018.

9.  The complainant further alleged that the opposite parties had issued an advertisement in 2007 proposing to construct a multi storied luxury apartment with exclusive life style facilities at Kakkanad.  The opposite parties offered among other things facilities such as self-contained residential estate, signature tower, 3 floors of shopping plaza, club house having an area of 70000 sq. ft., video surveillance, 24 hours power back-up, electricity substation, RO Plant for water treatment, bank ATM, office space, broadband internet etc.  Several other facilities were also offered in their brochure.  Though these facilities were offered in the brochure, many of these facilities were not provided by opposite parties 1 to 3. 

10.  The learned counsel for opposite parties 1 to 3 contended that the contents of the brochure cannot be styled as an offer.  The contents of the brochure are tentative information about the project.  The facilities mentioned in the brochure are only tentative and the complainant cannot claim it as a matter of right.  The complainant has to go by the Apartment Buyer’s Agreement.  They cannot make any claim against the opposite parties based on the brochure.  The other contention raised by the learned counsel for the opposite parties is that the final statement of accounts issued to the complainants is in accordance with the terms of the Apartment Buyer’s Agreement.  They further stated that the delay happened due to the shortage of sand, cement and steel in the market and also due to the shortage in availability of labour.  The opposite parties alleged that they were not in a position to do the work and to hand over the apartment as stipulated in the agreement due to the above reasons.  Despite their earnest efforts opposite parties’ stock of construction materials got exhausted and time was consumed and lost for procuring these materials. There is no wilful delay on the part of the opposite parties and the delay occurred only due to reasons beyond the control of the opposite parties and the same are not attributable to the opposite parties. 

11.  Clause 10.1 of the Apartment Buyer’s Agreement provides that if the handing over of the apartment was delayed due to reasons that are beyond the control of the opposite parties 1 to 3 i.e; due to force majeure situation, then the opposite parties are entitled to extension of time for handing over of the apartment.  The opposite parties have completed the construction and obtained occupation certificate in respect of the complainant’s apartment which is situated in B Block.  The delivery of possession of the completed apartment was given to the complainant on 11.01.2018.

12.  The allotment of the buildings by the opposite parties 1 to 3 without having adequate stock of raw materials such as sand, cement and steel and without having enough labourers especially being an experienced builder, itself amounts to unfair trade practice.  The opposite parties 1 to 3 miserably failed to prove their contentions that there was shortage of stock and shortage of labourers.  Thus the opposite parties failed to establish any force majeure situation for the delay in handing over the possession of the apartment to the complainant.  There is unexplained inordinate delay in handing over the possession of the apartment to the complainant.  For the delay we hold that complainant is entitled for compensation.  Now the question arises as to what is the quantum of compensation to which the complainants are entitled, for the delay in handing over the possession and not providing the amenities as provided in the brochure.

13.  According to the learned counsel for opposite parties 1 to 3 as per clause 10.4 of the agreement, in the event the opposite party is not in a position to deliver the possession of the apartment within 36 months from the date of execution of the agreement, the allottee shall be entitled to compensation @ Rs. 5/- per sq. ft. of the super area of the apartment per month for the period of such delay beyond 36 months.  The learned counsel contended that the complainant was not entitled for any compensation since the complainant is in default of payment of instalments.  The learned counsel placed reliance on the judgment of Hon’ble Supreme Court of India in the matter of Wg. Cdr. Arifur Rahman Khan and Aleya Sultana &ors. Vs. DLF Southern Homes Pvt. Ltd., to contend that for delay in delivery of the apartment, complainants are not entitled to claim interest of 12%, which is calculated as per the interest for Housing Loan, instead they are entitled for only 6% interest. 

14.  Perusing the bank statement of the complainant which is marked as Ext. A2 it is noted that the complainant had made almost regular payment of EMI from the date of agreement.  It is admitted that the complainant had booked the flat on 30.09.2008 and he had paid the booking amount of Rs. 4,00,000/- on the same day and after the agreement he had paid all the instalments in time except on few occasions.  For the delay in paying the instalments in accordance with the agreement they were forced to pay interest @ 18% for the delayed instalments.  A perusal of the agreement dated 24.06.2009 reveals a lot of incongruities between the remedies available to both the parties.  For eg; clause 10.1 states that “if the handing over of the possession of the apartment is delayed due to force majeure conditions then the allottee agrees that the company shall be entitled to the extension of time in delivery of possession of the said apartment.  The company as a result of such contingency also reserves the right to alter or vary the terms and conditions of the agreement or if the circumstances so warrant, the company may also suspend the construction and development for such period as is considered expedient and the allottee shall not have a right to claim compensation of any nature whatsoever including the compensation stipulated under clause 10.4 of the agreement during the period of such suspension”.  We have already found that in this case, there is no force majeure condition which enables the company to enforce this clause 10.1.  Clause 10.4 states that “The allottee agrees that if the construction and development of the said complex is abandoned or the company is unable to give possession within 36 months from the date of execution of this agreement or such extended periods as permitted under this agreement the company shall be entitled to terminate this agreement whereupon the company’s liability shall be limited to the refund of the amounts paid by the allottee with simple interest @ 9% per annum for the period such amounts were lying with the company and the company shall not be liable to pay other compensation whatsoever”.  However, the Company may at its sole option and discretion decide not to terminate this agreement in which event the company agrees to pay only to the allottee and not to anyone else and only in cases other than those provided in clauses (10.1), (10.2), (10.3) and clause (37) and subject to the allottee not being in default under any term of this agreement, compensation at Rs. 5/- per sq. ft of the super area of the said apartment per month for the period of such delay beyond 36 months or such extended periods as permitted under this agreement.  The adjustment of such compensation shall be done only at the time of conveyancing the said apartment to the allottee first named in this agreement and not earlier. 

15.  Moreover the builder company calculated the time period for construction from the date of agreement only and 36 months starts from the date of agreement, whereas the allottee made the payment from the date of allotment, i.e; 30.09.2008. The complainant was forced to pay interest for the delayed payment that occurred before the execution of the agreement @ 18% per month, whereas the builder needed to pay only a paltry sum of Rs. 5/- per sq. ft. of the super area per month.  From the above it is seen that the agreement dated 24.06.2009 is one sided and unreasonable.  The Hon’ble Supreme Court in the matter of “Pioneer Urban Land and Infrastructure Ltd. Vs. Govindan Raghavan and another reported in 2011(2) KHC SN 31 (PAGE 71)” held that incorporating such one sided clauses in the Apartment Buyers’ Agreement constitutes unfair trade practice.  It is further to be noted that there is delay in delivery of the possession and that the same was delivered without providing the promised amenities and facilities.  A brief perusal of the brochure shows that the following amenities have been promised in the brochure.  They are self-contained residential estate, signature tower, 3 floors of shopping plaza, club house having an area of 70000 sq. ft., video surveillance, 24 hours power back-up, electricity substation, RO Plant for water treatment, bank ATM, office space, broadband internet etc.  Admittedly many of these facilities were not provided by the opposite parties.  The contention of the opposite parties that the amenities promised in the brochure are only tentative and that the complainant cannot claim it as a matter of right cannot be accepted in its totality since the fact remains that any assurance given in the brochure is the initial promise made, based on which the flat purchaser makes a decision whether to purchase a flat or not.  It is noted that some of the facilities as stated in the brochure are made available to the allottees though not mentioned in the agreement.  The opposite parties cannot back out from the promise to provide all the facilities in the brochure stating that those facilities are not mentioned in the agreement for sale.  The act of the builder in not providing the amenities offered in the brochure amounts to unfair trade practice.  Complainant is deprived of those facilities though promised in the brochure.  Since all the facilities offered in the brochure are not provided, naturally complainant would have suffered much mental agony and hardship.  Therefore, the builder is liable to compensate the complainant for the injuries caused to him. In this regard the learned counsel for the opposite parties 1 to 3 would contend that award of interest cannot be arbitrary and without nexus to the default which has been committed.  Hence the award of interest at the maximum rate of interest charged by a nationalized bank for advancing home loans was construed to be arbitrary.  The judgment placed by the opposite parties (Wg. Cdr.Arifur Rahman Khan’s case stated supra) is not applicable here since there is inordinate delay.  We find that there was gross delay on the part of the builder/opposite parties 1 to 3 in completing the construction, and handing over possession.  In the light of the above facts, we hold that complainants are entitled for compensation at 12% per annum on the amount, which was paid by them.  Thus, we are of the opinion that the complainant should be paid compensation calculated at the rate of 12% per annum for Rs. 33,26,305.83 from 24.06.2012 till the date of handing over possession i.e; on 07.07.2018.

16.  The next question that arises for consideration is as to whether the builder is entitled to charge Rs. 12,500/- more towards car parking facility.  As per clause 1.1 the total price of the apartment is Rs. 32,53,480/- and that includes Rs. 2,50,000/- for parking space.  Thus the total sale price payable by the complainant including car parking space is only Rs. 32,53,480/-.  Admittedly the complainant has paid the amount of Rs. 33,26,305.83 including interest for the delayed payment.  The 1^stcomplainant has also deposited an amount of Rs. 14,12,612.56 before this Commission as per the direction of this Commission.  This amount of Rs. 14,12,612.56 includes Rs. 12,500/- which was charged additionally towards parking area.  As per the final statement dated 10.11.2015 it was noted that the opposite party has stated that they have only adjusted Rs. 2,37,500/- towards parking area as against Rs. 2.5 lakhs stated in the agreement.  Thus, they are claiming Rs. 12,500/- more towards parking area.  This demand is illegal as the complainant had already deposited Rs. 32,53,480/- and also interest for the delayed payment.  As stated above this amount includes Rs. 2,50,000/- for the parking area.  Demanding Rs. 12,500/- more for parking area by the opposite parties is illegal and arbitrary.  Complainants are entitled to refund of the amount of Rs. 12,500/- from the opposite parties.  Since the 1^st complainant has already deposited Rs. 14,12,612.56 before this Commission as demanded by the opposite parties, this amount of Rs. 12,500/- is to be refunded to the complainants. 

17.  The next dispute is with regard to the club annual subscription of Rs. 7,000/- club membership fee of Rs. 30,000/- and club security deposit of Rs. 20,000/-.  According to the opposite parties clause 1.14 (vii) of the agreement clearly shows the liability of the complainant to make payment towards club facilities.  What is stated in clause 1.4(vii) among other things is that the club usage shall not be limited to only the occupants of the complex but may be open to the external membership also and the company, its nominee or agency appointed for this purpose may make suitable provisions or covenants to this effect in the necessary documents which the allottee undertakes to faithfully comply with, without raising any objection.  It is understood that the entire operating cost of the above said club, improvements/upgradations to be carried out over a period of time, direct usage charges for the facilities used and the items consumed by the allottee from time to time, shall in no way constitute any portion of the total price of the said apartment and shall be paid extra and are outside the scope of this agreement.  From the above it is clear that the club charges can be levied by the opposite parties only if the allottees have used the facilities and the items are consumed from time to time.  Admittedly the complainants have not used the facilities of the club till the handing over of the possession.  Thus, it is clear that the opposite party builder cannot charge any amount on account of club charges before the complainant has used the facilities.  Moreover, the club area being common to all the allottees it would be for the association of the apartment owners, to be formed, to regulate the use of the club by the allottees.  The builder has no authority to deal with the formation of the club, club membership fee, subscription fee, security deposit, as the same is to be dealt with by the association of the apartment owners that is to be formed.  In the above circumstances, we hold that the complainants are entitled to refund of the club annual subscription charge of Rs. 7,000/-, club membership fee of Rs. 3,0000/-and the club security charge of Rs. 20,000/-. These amounts have already been deposited by the complainants before this Commission.  Hence these amounts shall be refunded to the complainants. 

18.  The other dispute is with regard to the cost of increase in super area and corresponding service tax.  According to the opposite parties1 to 3, as per clause 1.9 of the Apartment Buyer’s Agreement they are entitled to raise demand for the increase in area and the complainant is liable to make payment as demanded by them. 

19.  Clause 1.9 (b) states that “the allottee agrees and understands that the definition of super area, apartment area, the tentative percentage of apartment area to super area as on the date of execution of this agreement shall be subject to change till the construction of the said building is completed.  The allottee affirms that the allottee shall have no right to raise any kind of objection/dispute/claim at any time with respect to the basis of charging the total price or any change in percentage of the apartment area to the super area as mentioned in Annexure.  Clause 1.9(c) states that “the allottee agrees and understands that the allottee shall be liable to pay all taxes which shall be charged and paid as follows:- (i) A sum equivalent to the proportionate share of taxes in addition to the total price.  The proportionate share shall be the ratio of the super area of the said apartment to the total super area of all apartments and other buildings in the said complex.  (ii) The company shall periodically intimate to the allottee, on the basis of certificates from a chartered Engineer and/or a chartered accountant and the allottee shall make payment within 30 days from the date of such written intimation.  As per clause 1.9(b) and clause 1.9(c) the alolottees are liable to make payment towards increase in super area as well as service tax.  The complainant has taken the contention that the claim made by opposite parties 1 to 3 towards service tax is not legally sustainable in the light of Division Bench Judgment of Hon’ble High Court of Delhi dated 03.06.2016 in WP(c) 2235/2011 in Suresh Kumar Bansal Vs. Union of India. 

20.  However we note that, as pointed out by the learned counsel for the opposite parties 1 to 3, the provisions of service tax have been made applicable to the payments effected on or after 1^st July 2010 by the Central Government as per Notification No. 29/2010-service tax dated 22.06.2010.  Hence the dictum laid down in the above referred judgment is not applicable to the recovery of service tax as per the notification stated supra.  Thus, there is no illegality on the part of opposite party in levying service tax.  In the above circumstances, the complainant is liable to pay the amounts demanded towards increase in super area as well as service tax. 

21.  Regarding electricity connection charges it is noted that the opposite party has demanded and received Rs. 2,00,000/-towards getting sanction for electric connection.  According to the opposite parties 1 to 3, the complainants are liable to pay Rs. 2,00,000/- which is permissible as per clause 1.11 of the agreement read with clause 6 of the price list and clause 1.12 of the agreement. 

22.  Clause 1.11 states that “(i) The allottee agrees that the company may apply and thereafter receive permission from Kerala State Electricity Board or from any other body constituted by the Govt. of Kerala for purposes to receive and distribute bulk supply of electrical energy in the said complex/said apartment, then payment as per note number ‘6’ of price list will be applicable under this item also.  (ii):- The Allottee agrees that the Allottee shall make a requisition on a prescribed format to Kerala State Electricity Board authorities for obtaining service connection.  The allottee agrees and confirms to adhere to the specified applicable acts, rules, norms of supply authorities and the allottee shall be liable for any default in this regard.  (iii) The total price of the said apartment includes the cost of providing electric wiring, fire detection and fire fighting equipment in the common areas within the said building/said complex as prescribed in the Fire Fighting Code/Regulations under National Building Code 2005.  The total price is inclusive of the cost of providing the facility of power back up which may be provided subject to timely payment of maintenance charges, not exceeding 4.00 KVA for various 3 bedroom apartments and 3.00 KVA for 2 bedroom apartments in the said complex at 80% demand factor in addition to that for the common areas and services.  However DG set capacity calculation shall take into account suitable overall diversity of 65%.  It is specifically made clear to the allottee that in the event of non-payment of electricity charges as billed by the company/the maintenance agency/association, the company/the maintenance agency/association shall have the right to disconnect supply of electricity without any notice.  The total price of the said apartment does not include the cost of electric fittings, fixtures, etc. which shall be got installed by the allottee at his own cost.

23.  However if due to any change or enactment of any legislation, laws, bylaws or government orders, directives, guidelines or change/amendments in Fire Code including the National Building Code 2005, any additional fire safety measures are required or in the sole opinion of the company or any of its nominee, additional fire safety measures are required and undertaken, then the allottee undertakes to pay within 30 days from the date of written demand by the company, the additional expenditure incurred thereon in proportion to the super area of the said apartment to the total super area of all the apartments in the said building/said complex as determined by the company and such demand raised by the company shall be final and binding upon the allottee”.  Under this clause the builder company is under an obligation to send written demand that they have incurred additional expenditure.  Here the opposite parties have failed to point out any additional expenditure that was incurred by them so as to demand any additional amount on this account. 

24.  Clause 1.12 states that “The allottee shall pay an amount of Rs. 1,00,000/- as and when demanded by the company towards installation/connection of electricity/water/sewer services and for the incidental charges.  The allottee shall pay the consumption charges of electricity and water on actual basis”. 

25.  On a perusal of these two clauses it is noted that there is nothing which stipulates the builders to demand more than Rs. 1 lakh towards installation of electricity charges from the allottees.  Rs. 1,00,000/- mentioned in clause 1.12 includes incidental charges also.  Here the complainant had deposited Rs. 2,00,000/- towards electric connection.  Hence complainant is entitled to get refund of Rs. 1,00,000/-which is deposited by him as demanded by the opposite parties.  This amount of Rs. 1 lakh is to be refunded to the complainant.

26.  Regarding Holding Charges, the opposite parties 1 to 3 would contend that is actually due to the opposite parties 1 to 3 as per clause 9.4 of the Ext. A1 agreement.  Clause 9.4 of Ext. A1 agreement is clear in this regard which states that an allottee like complainants are liable to pay holding charges only in a case where they failed to take over the possession despite receipt of the letter of request to take over the possession issued by the opposite parties.  No such request has been issued to the complainant before 30.11.2017, i.e; possession letter/Ext. A6.  As stated above, there was inordinate delay on the part of the opposite parties to hand over the possession of the apartment.  There was no laches or omission on the part of the complainants in taking over the possession of the apartment before 07.07.2018.  It is clear from the evidence adduced i.e; deposition of the PW1 in his cross examination, Ext. A8 and A9 that the possession was given to complainants only on 07.07.2018 despite Ext. A6 possession letter.  In short, there was no default on the part of the complainants in taking over the possession.  Hence in view of clause 9.4 of the Ext. A1 agreement, complainants are not liable to pay the liquidated damages/holding charges demanded and paid.  As per clause 10.5 of the Ext. A1 agreement, the company/opposite parties shall execute a Conveyance Deed to convey the title of the said apartment together with the undivided share of land in favour of the allottee if the allottee has paid the total price and other charges in accordance with the agreement.  As stated earlier, the complainants have paid the entire agreed sale price and other charges in terms of the agreement and hence they are entitled to be issued a Conveyance Deed being the title of the apartment.  The claim of the complainants in this regard has not been disputed by the opposite parties. 

In the result, the complaint is allowed as follows: 

1. The complainants are held entitled to receive compensation of an amount of Rs. 23,94,940.20 being interest on the amount of Rs. 33,26,305.83 calculated @ 12% per annum from 24.06.2012 till the date of handing over of possession, 07.07.2018.
2. The complainants are held entitled to refund of an amount of Rs. 12,500/- which is claimed by the opposite parties on account of car parking charges.
3. The complainants are held entitled to refund of the amount of Rs. 7,000/- claimed by the opposite parties as club annual subscription charge.
4. The complainants are held entitled to refund of the amount of Rs. 30,000/- claimed by the opposite parties as club membership fee and also Rs. 20,000/- claimed by them as club security charge. 
5. The complainants are held entitled to refund of the amount of Rs. 1,00,000/- claimed by the opposite parties towards electricity charges.
6. The complainants are held entitled to get refund of the amount of Rs. 1,27,527.33 which was claimed by the opposite parties towards liquidated damages/holding charges.    
7. Opposite parties are directed to pay an amount of Rs. 50,000/- as costs of these proceedings. 

The complainants can get refund of the amount of Rs. 12,96,942.56/- (after deducting Rs. 1,15,670/- which was transferred in favour of the 4^th opposite party from the total amount of Rs. 14,12,612.56 as per the interim order dated 21.11.2019 in I.A. No. 4/2019) deposited by them before this Commission, being the total of the amounts claimed by the opposite parties 1 to 3 and disputed by them, to be adjusted towards the amounts to which they have been held entitled, as above. 

The opposite parties are entitled to get amounts only towards increase in super area and service taxes from the amount deposited by the complainants before this Commission.  The balance amount, if any, due to the complainants as ordered above is to be paid by the opposite parties, within one month from the date of receipt of this order, failing which the amount will carry interest at the rate of 9% per annum. The interest accrued due on the amount of Rs. 14,12,612.56 deposited by the complainant shall be paid to the opposite parties.

JUSTICE K. SURENDRA MOHAN  : PRESIDENT

                                    T.S.P. MOOSATH   : JUDICIAL MEMBER

                      RANJIT. R                : MEMBER

                                                                                                     BEENA KUMARY. A         : MEMBER

                                                                                                        RADHAKRISHNAN K.R.  : MEMBER

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APPENDIX

JUSTICE K. SURENDRA MOHAN  : PRESIDENT

                                    T.S.P. MOOSATH   : JUDICIAL MEMBER

                               RANJIT. R                : MEMBER

                                                                                                         BEENA KUMARY. A         : MEMBER

                                                                                                           RADHAKRISHNAN K.R.  : MEMBER

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