BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAS NAGAR, MOHALI

                                  Consumer Complaint No.  97 of 2015

                                 Date of institution:          03.03.2015

                                                     Date of Decision:            25.02.2016

Rajendra Singh Bisht son of Ujjawal Singh Bisht and Mrs. Babita Bisht wife of Rajendra Singh Bisht, House No.778, Sector 29-A, Chandigarh.

    ……..Complainants

                                        Versus

M/s. Barnala Builders & Property Consultants, SCO No.1, Opposite Yes Bank, Zirakpur – Patiala Road, Zirakpur.

………. Opposite Party

Complaint under Section 12 of the

Consumer Protection Act, 1986.

CORAM

Mrs. Madhu. P. Singh, President.

Shri Amrinder Singh Sidhu, Member

Mrs. R.K. Aulakh, Member.

Present:    Shri Munish Kumar, counsel for the complainants.

                Shri Ambrish Sharma, counsel for the OP.

(Mrs. Madhu P. Singh, President)

ORDER

                The complainants have filed the present complaint seeking following directions to the Opposite Party (for short ‘the OP’) to:

(a)    pay him Rs.1,11,729/- as interest on booking amount of Rs.3,72,430/- from the date of booking i.e. 15.12.2009 to date of agreement to sell dated 08.07.2011.

(b)    to pay him interest to the tune of Rs.1,50,120/- on the cost of flat plus car parking i.e. Rs.24,82,866/- from the date of approval i.e. 15.03.2011 to the date of agreement to sell dated 08.07.2011.

(c)    to pay him Rs.1,58,880/- which was paid interest to the OP after agreement to sell dated 08.07.2011.

(d)    to refund him service tax charges of Rs.65,212/-

(e)    to refund him Rs.80,000/- charged for car parking.

(f)     to pay him Rs.2,00,000/- as compensation for delay from December, 2011 to August 2013 i.e. for 20 months.

(g)    to pay him Rs.1,68,970/- paid as interest to LICHFL.

(h)    to pay him Rs.2,00,000/- for common deficiencies like ample covered car parking, free fully equipped gym, club, indoor games, community centre and 67% open green area.

(i)     to pay him Rs.1,00,000/- for deficiency in quality of construction  etc.

(j)     to pay him Rs.2,00,000/0 as compensation for harassment and unfair trade practice.

                The complainant booked apartment No.104 in Block O with the OP in Maya Garden Apartments Phase-II at Zirakpur. The OP issued allotment letter dated 05.12.2009 in which the completion/possession of the apartment was mentioned as December, 2011. However, the actual possession was given to the complainant after delay of 20 months on 30.06.2013.  However, some of the promised facilities have not been provided to them. The complainant has booked the apartment under Plan-A by availing 8% discount on the total cost. As the project was not approved by any bank for Plan-A, the LICHFL has disbursed the amount on the basis of completion of construction level. The OP has also incorrectly imposed an interest of Rs.3,09,000/- on account of delay in making the payments at the time of handing over the possession. However, the offer of possession letter dated 28.03.2013 shows that there was nothing due regarding interest. The complainant had paid the interest to the OP under protest. The complainant had paid a total payment of Rs.29,57,078/-  to the OP against Rs.26,98,755/- which is the cost of the flat. Thus an excess amount of Rs.2,58,323/- has been paid to the complainant.  The OP has also not provided the car parking despite charging Rs.80,000/- for the same.  The OP had also demanded maintenance charges of Rs.1,00,000/-  for three years from the complainant at the time of possession whereas the same were not disclosed at the time of booking. All the Govt. charges/expenses are to be borne by the builder before possession as per Clause 18 of the agreement to sell. Thus the service charges taken from the complainant to the tune of Rs.65,212/- is to be refunded to the complainant.  The OP has charged Rs.3,72,430/- as booking amount of the flat before approval. Thus the complainant is entitled to interest of Rs.1,11,729/- on this amount. The layout plan of the project has been approved on 15.03.2013. With these allegations the complainant has filed the present complaint.

2.             The OP in its reply have pleaded in the preliminary objections that the complainant has raised the dispute with regard to settlement of account, which cannot be adjudicated upon by this Forum. Thus the matter is to be adjudicated by the civil court only.  The complainant has already taken over the possession of the flat on 30.06.2013. The complaint has been filed with malafide intention. Most of the reliefs sought by the complainant are time barred.  The complainants are investors. On merits, it is denied the project had been promoted without getting approvals.  The complainant booked the flat with his free will.  Earlier the approximate time of possession was fixed in December, 2011 but later on at the time of execution of agreement the actual date of possession was fixed as 31.03.2013 on the request of the complainants as they sought more time to clear the dues. A proper well equipped club house with modern gym is available in the housing project which has been operated by trainer gym instructor. Sufficient covered car parking has been allotted to respective allottees of the flats.  The floors have been constructed as per approved layout plan. No green/cover area has been converted into car parking space. The car parking, waterworks and transformer has been installed as per layout plan.  The housing project was approved by so many banks in accordance to both payment plans. The complainants were not interested to borrow the loan. The complainants opted for Plan-A to avail benefit of 8% discount and they were bound to deposit the cost of the flat in accordance to the payment plan.  As per payment Plan-A the complainant was required to deposit 95% cost of the flat within 45 days. But the complainant failed to clear the payment within time. The OP charged interest from the complainant as per settled terms and conditions between the parties. The complainants paid only Rs.24,82,866/- which was cost of the flat and had not paid Rs.29,57,078/-.  Service tax of Rs.65,212/- was paid to the Govt.  and Rs.1,00,000/- as maintenance charges for three years . Rest of the amount of Rs.3,09,000/- was taken by the OP towards interest on delayed payments. The OP has rightly charged car parking charges and complainant is not entitled to refund of the same.  At the time of booking all the charges were specified to the complainant. The entire structure of the project is earth quake resistant. The material used for electrification, plumbing and other works, is as per norms mentioned in the brochure. The complainant has signed satisfaction letter dated 01.12.2013. Moreover, in the sale deed dated 07.03.2014 the complainant also had shown his satisfaction with regard to the flat and housing project. As per provisions of the Finance Act, 1994 service tax is levied on taxable services only and not on service provider.  The word ‘first party’ instead of ‘second party’ as wrongly printed in Clause-18 of the agreement and public notice in English newspaper ‘Indian Express’ and Punjabi Newspapers ‘Jagbani’ was got published regarding clarification to this. Thus, denying any deficiency in service on its part, the OP has sought dismissal of the complaint.

3.             To succeed in the complaint, the complainant tendered in evidence affidavit Ex.CW-1/1 and copies of documents Ex.C-1 to C-10.

4.             Evidence of the OP consists of affidavit of Sandeep Bansal, their ManagerEx.OP-1/1 and copies of documents Ex.OP-1 to Ex.OP-9.

5.             We have heard learned counsel for the parties and have also gone through the written arguments submitted by them.

6.             It is admitted case of the parties that the offer for allotment of apartment No.104 Category B, Block-0, First Floor having super area of 1370 sq. ft. has been issued by the OP vide Ex.C-3 dated 05.12.2009. After the allotment letter, the agreement to sell was duly executed between the parties on 08.07.2011 vide Ex.C-4.  Against the total agreed sale consideration Rs.24,82,866/-, the complainant paid a total sum of Rs.3,72,430/- on 23.11.2009 and for the balance payment the complainant has opted for down payment Plan-A.  As per down payment Plan-A, 95% of the agreed amount was to be paid by 19.04.2011 and the OP was to provide the possession of the flat by 31.03.2013 as per Clause 18 of the agreement to sell. The complainant signed tripartite agreement with LIC Housing Finance vide agreement dated 15.09.2011 Ex.C-5 for raising loan of Rs.20.00 lacs for making balance payment of the agreed amount.  Thus, it is ample clear that the complainant has not adhered to the time line for making the 95% payment as on 19.04.2011 as per the agreed schedule Plan-A. The tripartite agreement dated 15.09.2011 is later in time. Though the complainant has made all the outstanding payments as on 28.03.2013 as per the letter issued by the OP showing nothing due against the complainant on account of interest, service tax, maintenance and cost of the flat. The OP has though denied the issuance of such letter because as per the OP this is a forged document, but the OP has failed to prove its contention on record.  Once the OP has issued such a letter showing nothing due, the complainant has received the possession letter on 30.06.2013 and thereafter took the physical possession of the property on 01.12.2013 vide Ex.OP-4 showing full satisfaction towards the quality, quantity etc. of the flat. Learned counsel for the OP states that once the complainant is in the possession and has signed the satisfactory note, any dispute raised thereafter by him is not a consumer dispute and is a business to business dispute. In this regard he has relied upon the decision of Hon’ble Supreme Court in Laxmi Engineering Works Vs. P.S.G. Industrial Institute, 1995 (3) Supreme Court Cases 583. We are not in agreement with the contention of the counsel for the OP as in the present complaint the complainant has paid the all outstanding dues under protest while physically  taking the possession. Before handing over the physical possession to the complainant, the OP forced the complainant to pay Rs.3,09,000/- on account of interest on delayed payment. Finding no way out as his major money and the property was at stake, the complainant had paid the said amount under protest and took over the possession and since then he is in possession of the property and also sale deed qua the flat in question has been executed before the competent authority on 07.03.2014.  Thus forcible charging of Rs.3,09,000/- towards interest after issuance of no due certificate by the OP,  is an act of unfair trade practice on its part, therefore, the complainant has sought refund of the said amount.

7.             The OP has admitted having received said amount of Rs.3,09,000/- as interest on delayed payment but there is no explanation coming forward from it as to why this amount has been charged once it has already issued no due certificate vide letter dated 28.03.2013 Ex.C-9.  As per counsel for the OP the charging of interest is a part of the pricing policy and the Consumer Forum cannot interfere in the pricing policy as per the decision of Hon’ble National Commission in A.N. Saigal Vs. Delhi Development Authority, II (1995) CPJ 17. In the present complaint, the complainant has not challenged the pricing of the flat in question. His only grievance is charging of interest on delayed payment made by him. In fact as per the complainant there is no delay in making payment of sale consideration as Plan-B and the payment has been made by the banker of the complainant to the OP as per the progress and development at the site and further the OP has already issued no due certificate vide Ex.C-9 dated 28.03.2013. Therefore, the judgment relied upon by the OP has no bearing the present controversy. Thus without any plausible explanation or evidence to this effect on record, we are of the view that the OP is estopped from charging any amount towards interest once the no due certificate has been issued by the OP. Thus, the complainant is entitled to refund of Rs.3,09,000/- from the OP.

8.             Regarding charging of Rs.1,00,000/- as maintenance charges, as per the complainant  once the OP has issued no due certificate vide Ex.C-9 showing nothing due against maintenance, the OP is estopped from raising any demand or payment thereof on account of maintenance charges. The contention of the OP that maintenance charges have been rightly levied as per terms of application form and agreement to sell. We are in full agreement with such contention of the OPs had they not issued the no due certificate Ex.C-9. Thus charging of maintenance charges of Rs.1,00,000/- is an afterthought and is not supported by any evidence on record. Therefore, once the OP has issued no due certificate on account of maintenance charges being nil, the demand of Rs.1,00,000/- on this account is illegal.

9.             Regarding car parking facility, as per allotment letter the complainant has paid Rs.80,000/- as car parking charges and as per brochure issued by the OP, it has claimed ample covered car parking space with adequate lightening and lift facility as well as gated security. Since the complainant has paid Rs.80,000/- as the car parking and the said amount is not disputed, the grievance of the complainant is that despite having received Rs.80,000/-, the OP has failed to provide covered car parking space. As per the complainant the car parking has been provided on the berms of the road as temporary car parking sheds and not concrete covered car parking. In order to prove his contention the complainant has relied upon the photographs Ex.C-10 (Colly) supported by his affidavit. On the other hand, the OP has relied upon its own photographs showing car parking space to Flat No.702, 301, 202 etc. but no where such car parking allotted relates to the flat of the complainant. As per counsel for the OP, Hon’ble Supreme Court of India in DLF Limited Vs. Manmohan Lower and others, Civil Appeal No.10930 of 2013 decided on 10.12.2013. While appreciating the fact that Naharchand Laloochand Private Limited Vs. Panchali Cooperative Housing Societies Limited (2010) 9 SCC 536 was applicable to State of Maharashtra but it cannot be denied that the complainant has the right to use common areas and facilities including covered car parking. In the instant case, the OP has charged Rs.80,000/- for covered car parking and against the paid parking has provided temporary tin shed parking on the berms of the road. Therefore, the OP do not get any support from the judgment of the Hon’ble Supreme in DLF Limited Vs. Manmohan Lower and others (supra). Complainant has shown the car parking shed at road side causing narrowing down of the road and this fact is not disputed by the OP. Once the OP has failed to show allotment of covered car parking space to the complainant, the car parking provided under the temporary shed on the road berms cannot be in any manner be considered as covered car parking and the complainant has been deprived of the use and benefit of covered car parking for which he has paid Rs.80,000/-. Another plea of the OP that the claim of car parking charges is time barred is again not acceptable as the complainant has received possession of the flat in question on 01.12.2013 and he has filed the complaint on 17.03.2015 well within the limitation.  Thus, the complainant is entitled to refund of Rs.80,000/- charged by the OP towards covered car parking.

10.           Another grievance of the complainant is that earth quake resistance structure, copper cabling for external wiring and sewerage treatment plan has not been provided against the promises made in the brochure. In this regard the complainant has not produced any evidence to prove his grievance and on the other hand the OP has produced the satisfaction letter dated 01.12.2013 Ex.OP-4 duly signed by the complainant. Thus, the complainant is not entitled to any compensation on this account.

11.           Regarding charging of  service tax to the tune of Rs.65,212/-, the complainant contends that the service tax is to be paid by the service provider and not by the service receiver and, therefore, the OP is not entitled to claim any amount on account of service tax.  Further the counsel for the OP has supported his contention on the basis of the judgment of the Hon’ble Madras High Court rendered in All India Tax Payers Association Vs. Union of India, 2006 (4) STR 14 wherein it has been clarified under the provisions of Finance Act 1994 that the service tax is levied on taxable service only and not on service provider. Service provider is only an assessee under Section 65 of the Finance Act from the user of service as contemplated under Section 12-A and 12-B of the Central Excise Act.  Under the facts of the present complaint in hand the complainant has already paid Rs.65,212/- as service and has discharged his statutory liability arising out of the terms of contract. Therefore, even issuance of no due certificate showing nil recovery on account of service tax by the OP has no bearing in discharge of the  statutory liability by the complainant. Thus the OP has not erred in charging the service tax.

12.           As per the complainant there is delay in handing over the possession and he is entitled to compensation on this account. It is ample clear from the perusal of agreement to sell Ex.C-9 that the OP was to handover the possession by 31.03.2013 whereas it had issued offer of possession on 28.03.2013 Ex.C-9 and handed over the same to the complainant on 30.06.2013. Actual physical possession has been handed over to the complainant on 01.12.2013 vide Ex.OP-4. Thus, it is ample clear that there is delay of about 8 months in handing over the possession. As per Clause 5 of agreement to sell, in case of default by the OP in handing over the possession by the stipulated date, the OP will pay to the complainant Rs.5/- per sq. ft. per month. Therefore, the complainant is entitled to benefit of penalty charges @ Rs.5/- per sq. per month for 1370 sq. ft. area for a period of eight months from 01.04.2013 i.e. after the expiry of promised date of 31.03.2013 till 01.12.2013 the actual date of handing over of the physical possession of the property in question.

13.           Hence the complaint is allowed with the following directions to the OPs to:

(a)    to refund to the complainant interest amount Rs.3,09,000/- (Rs. Three lacs nine thousand only) with interest @ 9% per annum w.e.f. 01.12.2013 i.e. date when the complainant took over the possession of the flat.

(b)    to refund to the complainant maintenance charges of Rs.1,00,000/- (Rs. One lac only) with interest @ 9% per annum w.e.f. 01.12.2013 i.e. date when the complainant took over the possession of the flat.

(c)    to refund to the complainant car parking charges of Rs.80,000/- (Rs. Eighty thousand only) with interest @ 9% per annum w.e.f. 01.12.2013 i.e. date when the complainant took over the possession of the flat.

(d)    to pay to the complainant penalty @ Rs.5/- per sq. ft. per month for super area of 1370 sq. ft.  w.e.f. 01.04.2013 till 01.12.2013 on account of delay in delivery of possession.

(e)    to pay to the complainant a lump sum compensation of Rs.25,000/- (Rs. Twenty five thousand only) for mental agony, harassment and costs of litigation.

                Compliance of this order be made within a period of thirty days from the date of receipt of a certified copy of this order. Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the file be consigned to the record room.

Pronounced.                           

February 25, 2016.      

                                (Mrs. Madhu P. Singh)

                                                                        President

(Amrinder Singh Sidhu)

Member

(Mrs. R.K. Aulakh)

                       Member