Punjab

StateCommission

CC/255/2017

Avinash Chandra Verma - Complainant(s)

Versus

M/s Omaxe Chandigarh Extension Developers Pvt. Ltd. - Opp.Party(s)

B.S.Toor

16 Jul 2018

ORDER

                                                               FIRST ADDITIONAL BENCH

 

 

    STATE CONSUMER DISPUTES  REDRESSAL  COMMISSION,       PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH

 

                   Consumer Complaint No.255 of 2017

 

                                                          Date of Institution   : 19.04.2017         

                                                          Order Reserved on : 13.07.2018

                                                          Date of Decision     : 16.07.2018

 

Avinash  Chandra Verma (since deceased) son of Sh. Satyanarayan Parsad Verma, through his legal representatives :-

 

a)       Neelam Verma wife of late Sh. Avinash Chandra Verma

b)       Ashish Verma son of late Sh. Avinash Chandra Verma

c)       Munish Verma son of late Sh. Avinash Chandra Verma

 

          All residents of Ambuja Colony, Village Dabur Ji, Lodhi Majra,    Ropar, Punjab present R/o H.No. 12, 3 BHK, Second Floor, Comfort       Homes, Sector 126, Mohali, Kharar, Punjab.                                                                                                                                                                                                                     ….Complainants

                                      Versus

 

M/s Omaxe Chandigarh Extension Developers P. Ltd., SCO 143-144, First Floor, Sector 8-C, Chandigarh.

 

                                                                       …. Opposite party

 

Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986 (as amended up to date).

 

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member.

              Smt. Surinder Pal Kaur, Member.

Present:-

 

          For the complainants       :  Sh. B.S Toor, Advocate

          For the opposite party      :  Sh.Bhupender Singh, Advocate

  …………………………………………………………………………………….

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                                     

                     Originally this complaint was filed by Avinash Chandra Verma U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act) against OP and during pendency of the case, he expired and his legal representatives were substituted in his place, vide order dated 18.04.2018 of this Commission. The complainant alleged in the  complaint that he booked Flat no. 274-D, ground floor Silver Birch Omaxe New Chandigarh on 01.05.2010 in the project floated by OP by filing application form. The terms and conditions thereof were handed over to him and he paid Rs.3 lac to OP as booking amount. He paid installments to OP, as demanded from him time to time. OP kept on delaying the  actual/final allotment papers and flat buyers agreement with a defined motive to delay the right of possession of the  flat. OP issued allotment letter dated 23.03.2011 to him. The total basic sale price of the flat was Rs.36,67,000/- with additional cost of Rs.1.5 lac and maintenance security was of Rs.20,000/-, thereby total cost of the  flat was Rs.38.12 lacs. OP issued letter demanding  Rs.42,487/- as interest on account of delay in making payment  of installments along with statement of account,  showing payment of amount of Rs.36,25,074/- by complainant to it, whereas total price of the flat was Rs.38,12,000/- to Rs.38,73,045/- . OP demanded amount of Rs.2,98,119/- from complainant, vide letter dated 06.04.2015. The delay in payment was not due to the fault of the complainant,  but it was negligence of employees of OP only. Cheques were kept by OP and thereafter returned due to typographical error only. OP increased the price of the flat to Rs.39,15,532/- by raising amount of Rs. 1,03,532/-. The complainant asked for compensation for delay in possession, as agreed upon between the parties and also sent email dated 10.05.2015 in that regard. There was delay of 319 days in handing over the possession of the allotted flat to complainant and OP  only adjusted the  amount of Rs.1,57,315/- towards delayed possession by ignoring the provision of the allotment for payment of Rs.10/- per sq. ft per month as compensation. The complainant paid amount of Rs.1,46,724/- plus Rs.1500/- after deducting the  amount for delay in possession. OP wangled an undertaking from complainant to the effect that he would not apply for independent electricity connection  from PSPCL and would only purchase the electricity connection from OP, which is unfair. OP also posted letter on 20.06.2015 demanding increase in the maintenance charges. The outstanding amount by OP against complainant has been shown as Rs.3,09,087/- in an illegal manner. The complainant has prayed for below noted directions against OP:-

i)        OP be directed to pay amount/penalty towards delayed possession @ Rs.10/- per sq. ft per month for 1500 sq. ft w.e.f.        May 2012 till handing over the  actual legal possession being        charges for delay in possession as agreed by OP.

ii)       OP be directed to withdraw the impugned letters (Annexure C-         11 to C-13), vide which unreasonable demand for payment of increased area has been raised, which was totally unjust and          unfair.         

iii)      OP be directed to get the flat registered in the name of the      complainant only after removal of all deficiencies.

iv)      OP be further directed to pay Rs.2 lac as compensation for     mental harassment and Rs.50,000/- as costs of litigation.

2.                Upon notice, OP appeared and filed written reply by raising preliminary objections that there is an arbitration clause no.50(c )  in the  allotment letter/agreement dated 23.03.2011 and hence consumer complaint is not maintainable. This Commission has no territorial jurisdiction to try the complaint. It was denied that complainant is a consumer of OP. Since no objection was raised by complainant at that time, hence complainant is estopped from filing the complaint after taking possession from OP with regard to maintenance charges after handing over possession. OP also contested the complaint of the  complainant even on merits. The fact that complainant took the unit from OP and provisional allotment was made, vide letter dated 03.11.2010. The  complainant was aware about the process of allotment, to be carried out. Raising of grouse with regard to approvals/licenses of the project launched by OP by complainant is uncalled for. The area increased of the  allotted unit of complainant from 1500 sq. ft to 1616 sq. ft, hence additional price for the increased area has been demanded from the complainant. The amount of Rs.1,57,315/- has been adjusted in the account of the complainant towards delayed possession. With regard to maintenance charges, OP averred that this matter is between complainant and maintenance company only. OP denied other averments of the complainant and prayed for dismissal of the complaint.

3.                 The  complainant tendered in evidence affidavit of Neelam Sharma wife of complainant Ex.C-A along with copies of documents Ex.C-1 to Ex.C-16 and closed the evidence. As against it; OP tendered in evidence affidavit of Deepanjit Singh authorized representative of OP as Ex.OP-A along with copies of documents Ex.OP-1 to Ex.OP-12 and closed the evidence.

4.                We have heard learned counsel for the parties and have also examined the record of the case.

5.                The first submission of the OP is that there is an arbitration clause in the  agreement and hence this consumer complaint is not maintainable. In view of law laid down by larger bench of Hon'ble National Commission in consumer complaint no. 701 of 2015, decided on 13.07.2016 titled as "Aftab Singh vs. EMAAR MGF Land Limited and another" approved by Apex Court in Civil Appeal No.(s) 23512-23513 of 2017 (M/s EMAAR MGF Land Limited & Anr. Vs Aftab Singh) decided, vide order dated 13.02.2018, there is no force in it. Consequently, the existence of an Arbitration clause is not a bar to resolution of this dispute by this Consumer Forum. Accordingly, the said contention of OP is, thus, rejected on the basis of above referred law.

6.                The OP raised grievance that after delivery of the possession, there is no consumer dispute between the parties and relied upon law laid down in T.K.A Padmanabhan versus Abhiyan CGHS Ltd, reported in 2016(2) CPJ 273. We find that although possession has been taken by the complainant yet at the most, the commencement of cause of action is from the date of delivery of the possession only. The complaint has been filed within a period of two years thereafter. OP has not provided the compensation for delayed payment, as per contractual terms and hence cause of action survives to complainant in that regard. Cited authority is distinguishable from the facts of the  case in hand. Even otherwise, cause of action would remain opens till the execution of the conveyance deed and its registration by the developers in favour of the allottee. This point is decided against OP.

7.                The next grouse of the complainant is that OP delivered the possession of the  flat to him without completion or occupancy certificate, as maindated by PAPRA Act 1995. Undoubtedly, the complainant received the physical possession of the  allotted unit from OP and with regard to completion certificate, OP placed on record the completion certificate Ex.OP-11  dated 02.03.2015. Once, OP had delivered the  possession to the complainant and completion certificate for the project is Ex.OP-11 granted by the competent authority on 02.03.2015 for this project and hence the grievance of the complainant is unsustainable  on this ground.

8.                The grievance of the complainant is that OP caused delay in delivery of possession, but has not paid the compensation at the agreed rate of Rs.10/- per sq.ft per month for the  allotted area till handing over the  actual possession of the flat of 1500 sq. ft. On this point, OP had taken plea that they have adjusted the amount of Rs.1,57,315/- in the account of the complainant for delayed delivery of possession and hence claim of the  complainant stood satisfied on this point. The evidence on the record has been perused by us with the able assistance of counsel for the parties. It is evident from perusal of clause 31(a) of allotment letter Ex.C-3 dated 23.03.2011 that OP shall use its best efforts to complete the  development of the unit within 24 months or within extended period of six months from the date of start of construction, subject to force majeure conditions. No force majeure conditions have been either pleaded or proved on record by OP. The instant case is covered by clause 31(a) of the  allotment letter Ex.C-3 on the record. The starting point of two years and six months commences from 23.03.2011, when this allotment letter was issued to complainant by OP. OP was to deliver the possession of the allotted unit to complainant after doing necessary development by 23.09.2013 only. OP delivered possession of the  allotted unit to complainant and gave amount of Rs.1,57,315/- in the account of the complainant in that regard. The case of the complainant is covered by contractual terms of the allotment only, as per allotment letter Ex.C-3 in this regard. Clause 31 (e) of allotment letter Ex.C-3 makes it clear that OP/Company would pay to the allottee a sum of Rs.10/- per sq. ft per month  for the built up area of the unit for the period of delay in delivery of possession. The mere counting of the amount of Rs.1,57,315/- by OP towards delayed possession is not sufficient. OP has to pay compensation to complainant for the period of delayed possession from 21.09.2013 till the date of delivery of possession till 27.09.2015 @ Rs.10/- per sq. ft per month for the built up area of the  unit for the  period of delay. The amount of Rs.1,57,315/- credited in the account of the complainant, shall be adjusted in this regard out of the above referred amount of contractual compensation and this point is decided in this manner.

9.                The next grievance of the complainant is that OP had demanded additional price from complainant for the  increased area from 1500 sq. ft to 1616 sq. ft. On this point, the relationship is contractual between the parties. The allotment letter stipulates that the allotment is subject to variations in the  area and it could increase or decrease. OP has correctly raised the demand of increased area of 1616 sq. ft at the agreed rate between the parties from the complainant. On this point, we find support from law laid down by Chandigarh State Consumer Disputes Redressed Commission U.T in "Ajay Singh versus Omaxe Chandigarh Extension Developers Pvt. Ltd." reported in 2015(3) CPJ 15 that allotted area was liable to be increased or decreased as per allotment letter and final area was to be calculated after development of the project was complete by including the pro rata share of the  common area and said exercise could not have been carried out at the time of allotment of the unit to him. On the basis of this reasoning, the complainant is not found entitled to refund of the  amount for increased area.

10.              The next grievance of the complainant is with regard to CAM Charges and electricity charges taken from him by OP and direct the  OP to allow him to take independent connection from PSPCL and to refund the service tax. We found from appraisal of evidence on the record and hearing respective submissions of counsel for the  parties that that this grievance of the complainant is not justified to some extent with regard to maintenance charges. The liability of OP comes to an end after delivery of the possession when OP has already obtained completion certificate in that regard for this project from competent authority. Thereafter, the internal maintenance agency takes over the maintenance of project and claims maintenance charges from the  allottees. OP has got no role to play in this regard. This is a matter between complainant qua the  internal maintenance charges and hence OP is not bound to refund any common CAM charges to complainant. With regard to excess electricity charges taken by OP from complainant, there is no evidence on the record to substantiate it, other than the bald statement of the complainant, which stood rebutted by the  statement of OP against it. Once possession has been delivered to complainant and completion certificate already obtained by OP from competent authority, then there is no question of refund of service tax by OP to complainant. The complainant is not entitled to above relief on the above-referred counts. With regard to providing electricity connection directly from PSPCL, the matter is covered by the terms and conditions of the allotment. However, as per constitution of our country, no such fetters can be put upon the legal right of the complainant in that regard by OP.

11.              The complainant seeks direction to OP to execute the registration deed of the allotted unit in his name.  Once the complainant clears the  dues to OP, which are found due to OP, if any, OP cannot deny the execution and registration of the sale deed to complainant or his authorized person, as directed by him. Accordingly, the complainant is directed to clear the dues, if any found within a period of one month from receipt of copy of this order to OP and thereafter OP shall execute conveyance deed within 15 days therefrom  of the allotted unit in favour of the complainant, subject to payment of registration charges and stamp charges by complainant.

12.              As a result of our discussion, we partly accept the  complaint of the complainant by passing below noted reliefs:-

i)        OP is directed to pay amount/penalty to complainant for the    period of delayed possession from 21.09.2013 till the date of    delivery of possession 27.09.2015 @ Rs.10/- per sq. ft per   month for the built up area of the  unit for the  period of above           delay and the amount, if any already credited to complainant in        this regard, shall be adjusted.

ii)       OP is directed to allow the complainant to apply independent electricity connection from PSPCL at his own end.

iii)      The complainant is directed to clear the dues, if any found      within a period of one month from receipt of copy of this order to OP and on their payment, OP shall execute conveyance deed within 15 days thereafter  of the allotted unit in favour of           the complainant,          subject to payment of registration charges     and stamp charges therefor by complainant

iv)      The complainant is awarded Rs. 30,000/- as compensation for        mental harassment and Rs.25,000/- as cost of litigation.

13.              Arguments in this complaint were heard on 13.07.2018 and the order was reserved. Certified copies of the order be communicated to the parties under rules.

14.              The complaint could not be decided within the statutory period due to heavy pendency of court cases.

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

 

 

                                                                (SURINDER PAL KAUR)

                                                                                MEMBER

July 16,  2018                                                                

(ravi)