CONSUMER DISPUTES REDRESSAL COMMISSION-VII

DISTRICT: SOUTH-WEST

GOVERNMENT OF NCT OF DELHI

FIRST FLOOR, PANDIT DEEP CHAND SHARMA SAHKAR BHAWAN

CASE NO.CC/285/17

          Date of Institution:-    19.07.2016 

          Order Reserved on:- 06.10.2023

          Date of Decision:-      19.04.2024

IN THE MATTER OF:

JagdishYadav,

R/o HNO 1594,

Sector-10A, Gurgaon - 122001

.….. Complainant

VERSUS

1. M/s Eldeco Infrastructure & Properties Ltd.

Through Its Managing Director,

201-212, Splendor Forum, 2^nd Floor,

Jasola District Centre, New Delhi – 110025

2. Rajasthan State Industrial Development

& Investment Corporation Limited (RIICO),

NH-8, EPIP Neemrana,

Distt.Alwar, Rajasthan - 301705

.…..Opposite Party

Suresh Kumar Gupta, President

1. The complainant has filed the complaint under section 12 of Consumer Protection Act, 1986 (hereinafter referred to as Act) with the allegations that OP-1 is into the business of development, construction and sale of flats/apartments. OP-2 is a Government company engaged in construction and development of residential and industrial plots in Rajasthan. OP-1 in terms of allotment of land for GH-1-239 by OP-2 has launched a project for developing housing colony. He has booked an apartment measuring 900 sq. ft. in the project “Eldeco Eden Park” developed by OP-1 vide application dated 02.08.2012 by making the payment of Rs.145504/- as booking amount. The flat no.E-1/402, Type-B, measuring 900 sq. ft. for a total consideration of Rs.1955520/- was allotted to him. The OP-1 represented that complainant shall be entitled for a discounted price of Rs.1955520/- instead of Rs.2016000/- on signing the allotment certificate and agreement dated 08.08.2012 i.e. day on which booking amount was given. He was not given option to read the terms and conditions of the agreement. OP-1 has promised to deliver the flat in 40 months i.e. by October, 2015 towards itself. The terms show that the complainant has to sign the agreement otherwise booking amount shall be forfeited. He visited the office of OP-1 to negotiate the terms but OP-1 refused to do the same. The key illegal and unlawful terms of apartments buyers agreement are like this

1. There was no option to the complainant to negotiate the terms of the agreement.
2. OP-1 has allowed itself to sell the flat and to receive the payment without the receipt of registered released date, sanction flat in pre-booking.
3. The OP-1 did not have sanctioned building plan at the time of launching the project.
4. The flat was allotted without the consent of the complainant and the area to be covered is not explained to the complainant.
5. The floor plan was not attached with the agreement.
6. The OP-1 has made unlawful gains from the sale of area of approximate more than 30% of the actual permitted area. The OP-1 is not entitled to sell any area beyond FAR of the project.
7. The OP-1 has illegally excluded statutory common area from the purview of common area.
8. The OP-1 has charged excessive charges along with unexplained and unjustified prefessial location charges, car parking charges.
9. The OP-1 without informing has settled the payment plan and imposed 18% p.a. as penal interest for delayed payment.
10. The OP-1 has included all flats under preferential location which is unfair and illegal.
11. The OP-1 has failed to give detailed calculations of super area.
12. The club membership registration charges has been imposed whereas club and community building such as nursing school etc. belong to residents and had to be provided free.
13. Clause C (2) of the agreement has incorporated compensation of merely Rs.5 per sq. ft. per month in case OP-1 is guilty of delaying the possession of the flat.
14. The OP-1 has deliberately mis-utilised the funds for its own gain.
15. Clause C (5) of the agreement says that area shall be based on final physical measurement of the apartment and if variation in the area is more than 10% of the area sold than OP-1 will charge current market price of the said increase are beyond 10%.
16. Clause C (6) of the agreement, the OP-1 has unfairly laid the term regarding measurement of the apartment. The area under the walls cannot be calculated as carpet area. The balcony which is covered from the top by another balcony only 50% of the area can be taken into consideration for ascertaining the carpet area of the apartment.
17. The OP-1 has laid the conditions for variation at its sole discretion.
18. Clause C (8) of the agreement says that price of the unit may be variable which shall be based upon market area of construction. This cannot be the criteria as OP-1 has already considered the cost including the variation in the market cost at the time of launching of the project.
19. Clause C (11) of the agreement has imposed cost without being fair and transparent and without taking into consideration actual cost and a prorata cost incurred in the project.
20. The OP-1 in Clause C (14) of the agreement has reserved its rights for any further FAR which may be left over or which may be utilised or increased by the government policy and thereby given unfair and undue advantage to itself being in dominant position by withering away the rights of the complainant in FAR.
21. The OP-1 in clause D has given powers to itself to charge sums without any basis for calculation and how the dispute to be resolved in case of dispute.
22. The OP-1 in clause K (7) has excluded all right of the complainant over school, club and sports facility.
23. The OP-1 in clause K (15) has excluded all rights in the common area which has been purportedly used to calculate super area. The exclusion of the rights of the complainant from the common area is illegal and unfair.
24. The one sided agreement is unfair, unjust and unsustainable in the eyes of law.

2. The complainant is left no option but keep on paying the money as demanded by OP-1. 95% of the payment has already been paid along with unexplained charged levied by OP-1. A letter titled as project update was received from OP-1 in January, 2014 stating that area of the apartment has been increased from 900 sq. ft. to 923 sq. ft. qua which he replied that this is illegal. He has been continuingly writing the letters to OP-1 but without any result. The OP-1 has offered possession letter dated 26.02.2016and he has been charged with illegal and unexplained sum of money. The area of the flat has been increased by approximate 56 sq. ft. which is being charged at the BSP along with service tax at 121677 in addition to PLC and IBMS on the revised area of flat. A delayed payment of Rs.99468/- has been charged. The parking charges has been increased to 50000 from 25000/-. The advance maintenance of 17208 with service tax of 2495 is demanded. The OP-1 has also demanded cost escalation of 61934, Rs.4363/- respectively along with service tax. The cost escalation can only be claimed if area exceeds 10% of the sold area. OP-1 has claimed reimbursement in rain water, harvesting system, power back installation cost, solar water heating system, etc. along with service tax which is illegal. The OP-1 is guilty of fraud, deception, misrepresentation, unfair trade practice and deficiency in service. The OP-1 should withdraw demands as shown in demand notice dated 22.04.2016 and that the apartment be measure in his presence and to pay compensation etc. to the complainant. Hence, this complaint.
3. The OP-1 has filed the reply to the effect that complaint is not maintainable as complainant does not disclose any cause of action. The relief sought by the complainant is contrary to the terms and conditions of the allotment certificate and agreement.
4. The OP-1has allotted group housing plot GH-1-239 by OP-2 wherein project namely “Eldeco Green Park” is being developed. The reply is filed through AR of the OP-1 who is well conversant with the facts of the case and authorised to sign verify and file the pleadings and reply and to conduct the proceedings of the case. The complainant vide application dated 22.07.2012 has applied for allotment of residential unit in said project and flat no.E1/402, 4^th Floor, with super area measuring 900 sq. ft. was allotted vide allotment certificate and agreement dated 08.08.2012 for a basic cost of 1955520/- subject to the terms and conditions of the agreement. The complainant opted for construction link payment plan. The OP-1 has issued final demand notice/offer of possession on 26.02.2016 to make the balance payment within 30 days and possession of the flat will be handed over within 60 days from the receipt of entire payment. It was also made clear that allottee has to pay holding charges @Rs.5 per sq. ft. per month and safeguard charges @2.5 per sq. ft. per month for delayed possession beyond 90 days with interest @18% p.a. on delayed payment beyond 30 days. The complainant has never disputed the said agreement. The agreement was signed after understanding its contents. The complainant was well versed with the terms of allotment. The increased in the super is as per terms of the agreement and demand made on account thereof along with service tax is payable by the complainant. The increase in super area was informed to the complainant vide letter dated 08.01.2014. The allegations of the complainant are false and frivolous.
5. The OP-2 has filed the reply with the averments that complainant has no right to seek any relief against OP-2 and complaint is bad for misjoinder of parties. OP-2 has allotted housing plot no.GH1-239 to OP-1 on lease basis for 99 years vide leased dated 04.07.2012 for the development of group housing. The complainant has sought a direction to check and curb unfair trade practice on the part of OP-1 but said relief does not fall within the purview of the Act. The allegations of the sale of approximately more than 30% of the permitted area is based upon hearsay. OP-2 will take action against in case receipt of the complaint for unfair trade practice. There is no deficiency or unfair trade practice on the part of OP-2.
6. The complainant has filed rejoinder to the reply of OP-1 and 2 wherein he has denied the averments of reply and reiterated the stand taken in the complaint.
7. The parties were directed to lead the evidence.
8. The complainant did not lead the evidence by way of an affidavit.
9. The OP-1 has filed the affidavit of Sh. Vishnu Dutt, AR of the OP-1 in evidence and corroborated the version of written statement.
10. The OP-2 has filed the affidavit of Sh. Sunil Kumar, Junior legal officer in evidence, and corroborated the version of written statement.
11. We have heardthe Ld. Counsel for OP-1 as complainant and counsel for OP-2 did not appear to address the arguments.
12. The complaint is decided on the basis of evidence adduced by the parties and not on the basis of the pleadings.
13. The complainant has not filed the evidence by way of an affidavit. The allegations in the complaint have to be proved or substantiated by way of evidence. The complaint is not decided on the basis of pleadings. There is no evidence in support of pleadings.
14. The complainant has failed to lead the evidence. This is a case of no evidence.
15. In view of above discussion, the complainant has failed to substantiate the allegations as set out in the complaint and accordingly the complaint is dismissed.

• A copy of this order is to be sent to all the parties as per rule.
• File be consigned to record room.
• Announced in the open court on 19.04.2024.