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

                                  Consumer Complaint No.263 of 2015

                                 Date of institution:          04.06.2015

                                                     Date of Decision:            25.01.2016

Krishan Gopal resident of H.No.1637, Saini Vihar, Phase-3, Baltana, Zirakpur, District Mohali, Punjab.

    ……..Complainant

                                        Versus

1.      M/s. Barnala Builders & Property Consultants, SCO No.1, Opposite Yes Bank, Zirakpur – Patiala Road, Zirakpur, SAS Nagar (Mohali), Punjab.

2.      Mr. Satish Jindal, Managing Director, M/s. Barnala Builders & Property Consultants, SCO No.1, Opposite Yes Bank, Zirakpur – Patiala Road, Zirakpur, SAS Nagar (Mohali), Punjab.

………. Opposite Parties

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 Satvaveer Singh, counsel for the complainant.

                Shri Ambrish Sharma, counsel for the OPs.

(Mrs. Madhu P. Singh, President)

ORDER

                The complainant has filed the present complaint seeking following directions to the Opposite Parties (for short ‘the OPs’) to:

(a)    make him the payment of charges @ Rs.5/- per sq. ft. per month from 01.12.2014 till delivery of possession of the flat alongwith reasonable interest.

(b)    to pay him Rs.50,000/- as compensation on account of mental agony, financial loss and physical harassment.

(c)    to pay him litigation expenses to the tune of Rs.51,000/-.

                The complainant was allotted Flat No.102 Block D4 in Maya
Garden City by the OPs. The complainant made the payments of installments as per terms of payment. Vide letter dated 14.11.2014 the OPs offered possession by clearing all dues i.e. balance cost of the flat, interest, service tax and maintenance charges.  However, the demand of interest vide letter dated 14.11.2014 is unreasonable as the complainant has made the payments as per the demand of the OPs.  The other charges, i.e. balance cost of the flat, service tax and maintenance charges were also wrongly demanded by the OPs as the same were to be payable at the stage of completion of the project as mentioned in agreement to sell dated 19.09.2012.  The complainant sought clarification from the OPs but till date the OPs did not offer any clarification to the complainant nor any completion certificate of the project has been provided/shown to the complainant. In this regard also the complainant visited the office of the OPs number of time. Initially the complainant was allotted flat on 4^th floor vide letter dated 24.09.2011. However, the complainant was asked to sign agreement to sell for that flat which was not as per the requirements of the complainant and was different from what was assured by the OPs at the time of making initial payment for booking.  After much follow up the present flat was allotted to the complainant and agreement to sell dated 12.09.2012 was executed between the parties. As per agreement the complainant had opted for Construction Linked Payment Plan. As per the agreement 10% of the agreed amount + stamp duty + IBMS + Car Parking charges + any other charges applicable shall be paid at the time of completion of the project.  But the OPs have failed to provide/show any such completion certificate and other related documents.  As per Clause-5 of the agreement to sell the OPs were required to execute the sale deed on or before 30.11.2014 and were liable to handover the possession of the flat before this date. The complainant has fulfilled his obligation by paying 90% of the amount on or before 30.11.2014.  But the OPs have failed to perform their part and handover the possession of the flat on or before 30.11.2014. Thus the OPs are liable to pay charges @ Rs.5/- per sq. ft. per month from 01.12.2014 till possession of the flat is handed over to the complainant.  The complainant even sent legal notice dated 15.04.2015 but the OPs failed to respond to the same. With these allegations the complainant has filed the present complaint.

2.             The OPs in their 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 complaint has been filed with malafide intention.  On merits, it is pleaded that the complainant booked the flat after going through all the details and related documents.  The OPs issued allotment letter dated 24.09.2011 in the name of the complainant. After almost one year due to his financial problems, the complainant on 08.09.2012 requested for change of the flat and accordingly another flat was allotted to the complainant on 08.09.2012 on the joint name of the complainant and his wife.  The complainant was required to deposit 90% cost of the flat within 410 days from the date of booking i.e. 24.11.2011 but the complainant failed to clear all the dues within time.  As such due to late payment the complainant is liable to pay agreed interest @ 20% per annum on late payments.  Thus, the OPs rightly demanded interest on late payment.  The complainant is required to clear all due payments before taking possession. Without this the OPs are not bound to execute the sale deed. The service tax due to the Govt. had to be cleared by the complainant alongwith each and every installment. The complainant was to make 90% of the payment i.e. Rs.34,20,210/- by 08.01.2013 however, he made payment on 05.08.2013 to the tune of Rs.34,20,186/-. Thus, the complainant is defaulter in making payment.  The OPs have already applied for completion certificate and a copy of the same would be provided to the complainant.  The legal notice of the complainant is a fabricated document.  The OPs issued offer of possession to the complainant on 14.11.2014 much before 30.11.2014 the date fixed for handing over the possession.  It is the complainant who is not interested to take over the possession of the flat. As such the OPs are not liable to pay any penalty @ Rs5/- per sq. ft. per month to the complainant.  The OPs have started giving possession of the flats on 10.11.2014 and till date almost 750 possessions have been delivered to the respective allottees out of 850 allottees.  Thus, denying any deficiency in service on their part, the OPs have 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-9.

4.             Evidence of the OPs 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.             The grievance of the complainant in the present complaint is non handing over the possession of the flat as per agreed stipulated date as per buyers agreement despite the fact that the complainant has paid the agreed amount of 90% of the sale consideration upto 05.08.2013.  Further the OPs have issued the offer of possession dated 14.11.2014 Ex.OP-8 vide which the OPs have asked the complainant to pay (a) Rs.3,80,047/- towards balance cost of the flat; (b) Rs.2,44,794/- towards interest till date;  (c) Rs.1,17,427/- towards the service tax and (d) Rs.1,29,393/- towards one time maintenance charges for 3 years + 3 years free and take the possession by 31.12.2014. As per the complainant the OPs are not entitled to claim any interest on the amount paid as he has paid all the amounts in time as per the payments schedule provided by the OPs to the banker of the complainant vide Ex.C-6. Further the Ops are not entitled to charge any maintenance charges for one time maintenance for three years + three years free as set out by the OPs in their letter dated 14.11.2014 Ex.OP-8. Thus, the grievance of the complainant is twofold i.e. delay in handing over the possession beyond the stipulated period and in that eventuality not paying the complainant the amount due to him on account of penalty clause as set out in Clause-5 of the buyers agreement dated 19.09.2012 Ex.C-5 and have further wrongly charged interest on delayed payment and maintenance charges. The complainant is willing and ready to make the payment of the balance cost of the flat i.e. Rs.3,80,047/- as demanded by the OPs vide Ex.OP-8.  The complainant has also challenged the levy of service tax as claimed in Ex.OP-8. The complainant has, therefore, prayed for withdrawal of Ex.OP-8 and for payment due to him @ of Rs.5/- per sq. ft. per month beyond the expiry of agreed date of possession i.e. 30.11.2014 being a defective offer of possession.

7.             The OPs have denied any deficiency in service on their part and took a categoric stand in the reply that the amounts so claimed in Ex.OP-8 are correct and legal and the offer of possession has been rightly issued on 14.11.2014 before the expiry of agreed date i.e.  30.11.2014 as per Clause-5 of the buyer’s agreement Ex.C-. Therefore, the complainant is not entitled to any amount on account of penalty charges as there is no default on their part.

8.             The dispute in the present  complaint revolves around the following issues (a) whether the amounts demanded vide Ex.OP-8 on account of  balance cost of the flat, interest till date, service tax and towards one time maintenance charges for 3 years + 3 years free are legal and as per terms of the buyers agreement; (b) whether the offer of possession letter Ex.OP-8 is proper or defective and (c) whether there is delay in offer of possession by the OPs beyond the agreed date of possession, if so whether the complainant is entitled to the benefit of penalty clause of Rs.5/- per sq. ft. per month.

9.             In order to appreciate issue (a) above, it will be appropriate to look into the demanded amounts and their veracity as per terms of the buyers agreement. The perusal of Ex.OP-8 shows that the OPs have demanded the payment of Rs. 3,80,047/- towards the balance cost of the flat. In this regard the complainant himself has admitted in his complaint that he is willing and ready to make payment of the said amount. Therefore, the said demanded amount is treated to be legal and valid by the OPs.

10.           As regards Rs.2,44,794/- towards interest till date, in order to substantiate their claim, the OPs have submitted statement of account Ex.OP-6 showing the calculation of the interest due on account of delay in adhering to the payment schedule. The complainant on the other hand state that there is no interest due as he has not defaulted in making the payment as per payment schedule Ex.C-6 provided by the OPs to the banker of the complainant. In this regard the OPs have our drawn our attention to Para 11 of the written statement where it has been categorically stated that Ann.C-6 does not belong to the loan account of the complainant flat and no such document has been issued by the OPs to the banker of the complainant.  Therefore, the complainant cannot take any benefit of unrelated document to his flat’s loan account.

11.           Therefore, to appreciate whether the complainant has defaulted in making the payment as per schedule or not, we would revert back to Ex.OP-2 i.e. letter dated 24.09.2011 on the subject, offer for allotment of apartment No.404 category 2 BHK Block D-6 4^th Floor, total super area 1307 sq. ft. and subsequent offer of allotment for apartment No.102, Block D-4 Ist Floor, total super area 1307 sq. ft. Ex.OP-5 dated 08.09.2012 and agreement to sell dated 19.09.2012 Ex.OP-7/Ex.C-5. It is admitted preposition of the parties that initially as per Ex.OP-2 the apartment No.404, 4^th Floor D Block was allotted to the complainant against the agreed sale consideration of Rs.38,00,233/-  minus discount of Rs.3,04,018/- in case the complainant opts for Plan-A for making the payment of sale consideration. Otherwise in case he opts for Plan-B the total sale consideration of Rs.38,00,233/- and in case the complainant does not pay the amount as per Plan-A within 45 days from the date of offer for allotment, then automatically plan-B will be applicable. It is admitted position of the parties that as on 10.04.2012 the complainant has paid a total sum of Rs.6,99,434/- against the sale consideration of Flat No.D-404.  Thus the complainant has not availed Plan-A and, therefore, automatically Plan-B was applicable. The Plan-B for making consideration was as follows:

12.           Therefore, from the date of booking i.e. from 24.09.2011 till 150 days of the booking, the complainant has was to make 45% of the BSP including Rs.1.00 lac of the booking amount. On the contrary the complainant has paid only Rs.6,99,434/- against the 45% of the BSP i.e. Rs.17,40,000/- approximately. But the complainant has paid only Rs.6,99,434/- and was thus deficient in meeting out the agreed 45% of the sale consideration. Even the said amount of Rs.6,99,434/- has been paid beyond 150 days i.e. the last date for making payment was 10.04.2012 when the first payment was made on 24.9.2011, thus in all the payment has been made within 189 days. The details of the payment  are clearly mentioned in the agreement  dated 19.09.2012 which has been executed between the parties regarding Flat No.D-4, 102 after the complainant has made a request for change of flat from 404 to 102 on the same consideration. The complainant was to make now the payment for the remaining amount after 150 days from the date of execution of buyers agreement and not from the date of booking of initial flat No.404 on 24.09.2011.  Thus the remaining period for payment of balance amount will start from  19.09.2012 and not from 24.09.2011 the initial date of application and in case the complainant has defaulted in making the payment, thereafter, of course the OPs are entitled to interest on the defaulted amount. But perusal of Ex.OP-6 shows that the OPs have calculated the interest on defaulted amount from 24.11.2011. Therefore, the OPs are not entitled to levy interest from defaulted installments w.e.f. 24.11.2011 and the statement Ex.OP-6 needs revisiting by taking into account the number of days of default in making the payment w.e.f. 19.09.2012. The issuance of Ex.OP-6 without taking into consideration the factual delay in calculating the interest is an act of unfair trade practice.  Thus, the interest levied by the Ops in the demand notice being wrongly calculated needs modification at the hands of the OPs and as such is not chargeable from the complainant.

13.           The next amount demanded in demand notice Ex.OP-8 is service tax to the tune of Rs.1,17,427/-. In this regard the complainant contends that the service tax is to be paid by the service provider and not by the service receiver and, therefore, the OPs are not entitled to claim any amount on account of service tax. The OPs on the other hand took categoric stand that in Clause 18 of the agreement, inadvertently it has been printed that the service tax is to be paid by the first party to the agreement i.e. the OPs. A clarification to this effect has been issued subsequently through the media in the Jagbani newspapers that it is the complainant who has to bear the service tax.  Further the counsel for the OPs 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.  We are in full agreement with the contentions of the OPs and the amount demanded under the service charges head is rightly demanded by the OPs.

14.           As regards maintenance charges, as per Clause 13 of the buyer’s agreement the maintenance of the building, infrastructure and other services, the responsibility of the OPs ceases from the date possession of the apartment is taken by the allottee. Till date the possession has not been handed over to the complainant, therefore, the OPs are not entitled to charge any maintenance charges from the complainant and the demand of such amount on account of maintenance charges for three years plus three years free is not as per the terms of buyer’s agreement.

15.           Therefore, from the above discussions it is ample clear that the OPs have raised illegal demands on account of one time maintenance charges, as well as interest on the delayed payments. Other two demanded amounts, however, are not in contravention to the agreed terms of the agreement between the parties. Therefore, issuance of demand of payment under head interest till date and one time maintenance charges, being against the terms of agreement and are not maintainable. The demanded amount under the head balance cost of flat and service tax are as per terms of agreement and thus are maintainable. Therefore, the issuance of offer of possession of flat letter dated 14.11.2014 is held to be defective qua demand of interest and maintenance charges and deserves to be recalled by the OPs.  Accordingly issue No. (b) regarding offer of possession letter dated 14.11.2014  whether is proper or defective, the answer is that partially it is a defective offer.

16.           In order to answer the next question i.e. whether there is delay in offer of possession beyond 30.11.2014 or not, as per Clause 18 of the buyers agreement Ex.C-5 the delivery of possession was to be granted by the OPs before 30.11.2014. The issuance of defective offer of possession dated 14.11.2014 in no manner can give any benefit to the OPs that they have delivered the possession before 30.11.2014. Therefore, it is ample clear that possession of the flat has not been delivered by the OPs to the complainant till the agreed date i.e. 30.11.2014.  Therefore, in that eventuality the answer is against the OPs that they have failed to give the possession before the agreed date.  Therefore, the complainant is entitled to claim Rs.5/- per sq. ft. per month for the period of default on the part of the OPs after partially modifying the defective offer of possession. Therefore, the OPs are liable to pay  Rs.5/- per sq. ft. per month for a total covered area of 1307 sq. ft. to the complainant  w.e.f. 01.12.2014 till the actual handing over of the possession after withdrawing the partially defective offer of possession Ex.OP-8.  The complainant has thus successfully proved his complaint of deficiency in service and unfair trade practice on the part of the OPs qua levy of interest on delayed payment and demand of maintenance charges prior to handing over the property in question.   So far demand of service tax and outstanding balance payment of the sale consideration, the complainant is liable to pay the same to the OPs. Therefore, the complaint deserves to be allowed and the complainant deserves to be compensated.

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

(a)    to modify the demand notice dated 14.11.2014 qua  interest levied on delayed payment, if any, and withdraw the maintenance charges demanded  vide letter dated 14.11.2014.

(b)    to pay to the complainant penalty @ Rs.5/- per sq. ft. per month for 1307 sq. ft. area from 01.12.2014 till actual handing over of the possession.

(b)    pay a lump sum compensation of Rs.20,000/- (Rs. Twenty 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.                           

January 25, 2016.       

                                (Mrs. Madhu P. Singh)

                                                                        President

                                                We give our dissent view

Sd/- 

(Amrinder Singh Sidhu)

Member

Dissent view

Sd/-

(Mrs. R.K. Aulakh)

                       Member

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

                                  Consumer Complaint No.263 of 2015

                                 Date of institution:          04.06.2015

                                                     Date of Decision:            25.01.2016

Krishan Gopal resident of H.No.1637, Saini Vihar, Phase-3, Baltana, Zirakpur, District Mohali, Punjab.

    ……..Complainant

                                        Versus

1.      M/s. Barnala Builders & Property Consultants, SCO No.1, Opposite Yes Bank, Zirakpur – Patiala Road, Zirakpur, SAS Nagar (Mohali), Punjab.

2.      Mr. Satish Jindal, Managing Director, M/s. Barnala Builders & Property Consultants, SCO No.1, Opposite Yes Bank, Zirakpur – Patiala Road, Zirakpur, SAS Nagar (Mohali), Punjab.

………. Opposite Parties

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 Satvaveer Singh, counsel for the complainant.

                Shri Ambrish Sharma, counsel for the OPs.

Dissent view of Members

                We don’t agree with Clause (a) of the order of the Ld. President of this Forum vide which the Ld. President has directed to the OP “(a) to modify the demand notice dated 14.11.2014 qua interest levied on delayed payment, if any, and withdraw the maintenance charges demanded vide letter dated 14.11.2014” on the point that this direction is a vague and unclear direction.  Our view is that direction should be specific and clear.

Pronounced.                           

January 25, 2016.

(Amrinder Singh Sidhu)

Member

(Mrs. R.K. Aulakh)

                       Member