Chandigarh

StateCommission

CC/311/2015

Shellender Singh - Complainant(s)

Versus

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

Jasbir Singh Punia, Adv.

10 Jun 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	311 of 2015
Date of Institution	:	21.12.2015
Date of Decision	:	10.06.2016

Shellender Singh S/o Sh. Raj Singh R/o H.No.1821-F, Sector 7-C, Chandigarh.

……Complainant.

Versus

M/s. Omaxe Chandigarh Extension Developers Pvt. Ltd., SCO 139-140, First Floor, Sector 8C, Chandigarh.

.... Opposite Party.

Complaint under Section 17 of the Consumer Protection Act, 1986

BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT

MR. DEV RAJ, MEMBER.

MRS. PADMA PANDEY, MEMBER

Argued by: Sh. Shellender Singh, complainant in person.

Sh. Munish Gupta, Advocate for the Opposite Party.

PER DEV RAJ, MEMBER

The facts, in brief, are that the Opposite Party floated scheme for allotment of (G+2) 3 Bed Room independent floors on the plot size measuring 300 sq. yards under the name and style of “Silver Birch” in Omaxe Chandigarh Extension in the year 2010. One Sh. Kanwal Preet Singh booked one independent floor of 1500 sq. ft. on plot measuring approx. 300 sq. yards by making payment of Rs.6,65,000/- i.e. 20% of basic sale price, which was Rs.33,25,000/-. As the complainant was in urgent requirement of residential premises, he made total payment of Rs.6,65,000/- to Sh. Kanwal Preet Singh, upon which, endorsement with regard to assignment of allotment right and substitution in the name of allottee was made in his favour by the Opposite Party vide endorsement form dated 19.01.2011 (Annexure A-1). Independent Floor No.579 Q/First Floor, measuring 250.84 sq. mts./300 sq,. yards having built up area of 1500 sq. ft. approx.. in the said project was provisionally allotted to the complainant vide provisional allotment letter dated 24.01.2011 (Annexure A-2). Subsequently, allotment letter/Buyer’s Agreement for independent floor was duly executed between the parties on 04.02.2011 (Annexure A-3).

2. It was stated that as per Annexure –B (Part II) appended to the Agreement, the total cost of the floor was Rs.34,70,000/- i.e. Rs.33,25,000/- as basic sale price (BSP), Rs.40,000/- & Rs.85,000/- on account of club & Power Back-up installation cost respectively as additional cost for the said unit & Rs.20,000/- towards Interest Free Maintenance Security (IFMS). It was further stated that the complainant opted for Interest Free Construction Linked Installment Plan ‘B’. It was further stated that the construction work of the said unit did not start in time and was intentionally delayed by the Opposite Party. It was further stated that the construction work started on 03.06.2011. It was further stated that the Opposite Party was under obligation to complete the development of the said unit within 24 months from the date of start of construction. It was further stated that vide letter dated 13.07.2011 (Annexure A-4), the Opposite Party confirmed that EDC and IDC at the applicable rate on the date of allotment stood included in the basic sale price and no additional payment would be demanded except on these two counts, in case of any increase by the Government. It was further stated that vide representation dated 29.04.2013, the complainant agitated the demands of Opposite Party on account of external plastering, when the same was actually not completed. It was further stated that the Opposite Party increased the area of the unit by 140 Sq. ft. by revising the same from 1500 Sq. ft. to 1640 sq. ft. vide letter dated 14.12.2013 (Annexure A-6) and further claimed that the development work of the said unit was in full pace and possession would be offered very soon. The Opposite Party revised the basic sale price of the unit from Rs.33,25,000/- to Rs.36,51,661.92 i.e. @Rs.2226.62 per sq. ft., where it should have been at the booking rate of Rs.2216.67 per sq. ft. The Opposite Party, thus, revised the total cost of the unit to Rs.37,96,661.92.

3. It was further stated that the complainant vide letter dated 19.12.2013 (Annexure A-7) agitated the aforesaid demand on account of increased area as the final size of the unit, in terms of Clause 4, was to be confirmed on completion of the project. It was further stated that vide letter dated 17.04.2014 (Annexure A-8) requested the Opposite Party to provide copy of building plan and saleable area duly approved by the competent authority alongwith full details of bifurcation of total saleable area of the said unit. Vide letter dated 17.04.2014 (Annexure A-9) requested the Opposite Party for release of penal amount @Rs.16,400/- per month in terms of Clauses 31(a) to 31(e) of the Agreement. Vide letter dated 24.04.2014 (Annexure A-10), the Opposite Party informed that the penal amount would be adjusted at the time of offer of possession only and 85% work had been completed in the said unit and possession would be offered in the later quarter of the year 2014. Vide demand letter dated 20.02.2015 (Annexure A-11), the Opposite Party while raising demand on account of completion of the flooring, mischievously added Rs.61,050/- as other charges without providing bifurcation and revised the total cost of the unit to Rs.38,57,711.45. Vide letter dated 26.02.2015 (Annexure A-12), the complainant put in grievance before the Opposite Party, who vide its letter dated 27.02.2015 (Annexure A-13) provided bifurcation of Rs.61,050/- i.e. Rs.10,000/- as electrical sub-station cost-1; Rs.26,060/- as meter cost; Rs.4,000/- as utility cost & Rs.21,000/- as infrastructure cost/cess (Govt. levy)-1, which charges were arbitrary as the complainant had already paid Rs.85,000/- as additional cost for power back up installation cost.

4. It was further stated that subsequently, vide letter dated 11.8.2015, the Opposite Party offered provisional possession of the unit, in question and demanded Rs.2,66,265.74, which included Rs.2,122/- as interest on account of delayed remittance, in violation of allotment letter dated 04.12.2011. It was further stated that there was no term like “provisional possession”, and since all the payments were made well in time, therefore, the aforesaid demand of Rs.2,122/- was illegal. Vide letter dated 14.08.2015 (Annexure A-15), the complainant requested the Opposite Party to withdraw demand letter dated 11.08.2015 and to release the penal amount of Rs.4,75,600/- for 29 months delay. It was further stated that the Opposite Party vide letter dated 18.08.2015 (Annexure A-16) conceded its penal liability to the tune of Rs.2,19,945/- only.

5. It was further stated that the complainant visited the site, in question, on 13.08.2015 and 15.08.2015 and found that the pace of work was very slow and the unit, in question, was not ready for possession; quality of flooring work was found pathetic, leveling was inconsistent, tiles installation was not flat, air was found trapped beneath majority of floor tiles in living room, bed rooms, kitchen, balconies and bathrooms, wall tiles were not installed properly. It was further stated that the defects were brought to the notice of the Opposite Party but no action was taken to remove those defects. It was further stated that though the Opposite Party did not adjust the actual penal amount of Rs.4,75,600/-, the complainant made final payment of Rs.44,198/- to the Opposite Party. It was further stated that vide letter dated 06.11.2015 (Annexure A-20), the complainant once again requested the Opposite Party to hand over the legal physical possession of the unit, in question. It was further stated that vide letter dated 02.12.2015 (Annexure A-21), the Opposite Party in order to escape from payment of penal liability, informed that the process of registration of plots has been initiated and invited the complainant to get the sale deed registered by paying the required stamp duty and registration fee etc. Thereafter, the complainant vide letter dated 09.12.2015 gave legal notice to the Opposite Party but to no avail. It was further stated that the aforesaid acts of the Opposite Party amounted to deficiency, in rendering service, as also, indulgence into unfair trade practice.

6. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, seeking directions to the Opposite Party to complete the construction work of the unit and hand over its legal physical possession at the earliest; pay penal amount for delayed possession @10/- per sq. ft. per month w.e.f. 04.02.2013 alongwith interest on the said amount @24% per annum w.e.f. 04.02.2013; refund the excess amount of Rs.16,323.12 charged on account of increased area alongwith interest @24% per annum w.e.f. 27.12.2013; refund Rs.61,050/- charged on account of other charges; charge the meter cost at its prevalent market rate only; pay Rs. 5 Lacs for making false promise of reserved parking; Rs.5 Lacs as compensation for physical and mental harassment; Rs.1 Lac as legal costs; Rs.5 Lacs as deterrent damages for adopting various unfair trade practices and lastly to withdraw the demand letter dated 02.12.2015 (Annexure A-21).

7. The Opposite Party, in its written statement, took up preliminary objections to the effect that this Commission has no territorial jurisdiction to entertain the complaint as the property, in question, is situated at District SAS Nagar and that the complainant is not a consumer as he purchased the property for investment purposes.

8. On merits, it was stated that the total value of the unit cannot be said to be Rs.34,70,000/-. It was further stated that the Agreement itself provides that EDC, IDC, Service Tax, Cess, cost towards electricity sub-station, individual electricity meter, water connection etc. or increase in any government levy etc. are included in the total additional cost and shall be payable by the allottee on demand upon offer of possession of the unit. It was further stated that after entering into Buyer’s Agreement with the complainant, some time is taken for commencement of construction, which in this case, was 4 months and the same could not be said to be deliberate delay in any manner. It was further stated that 24 months period mentioned in clause 31(a) of the Agreement was to be read alongwith other details given in the said clause i.e. extended period of six months. It was further stated that components of EDC and IDC kept varying as per the demand raised by the Government agencies from time to time. It was further stated that payments were demanded as per the level of construction and not in violation as alleged. It was denied that the complainant continued to pay all the installments in time. It was further stated that increase in area is not in the hands of the developers as during the process of development, some changes are carried out for the benefit of customers and the same lead to increase/decrease in the area. It was further stated that in the instant case, the increase in area was in fact more than 140 sq. ft., for which demand was raised.

9. It was further stated that as per Clause 4 of the Buyer’s Agreement, the Opposite Party was at liberty to demand for the increased area as and when noticed and since the project was nearing completion, therefore, the demand was raised. It was further stated that the demand of the complainant for payment of penal amount by alleging that 24 months for giving possession had elapsed on 4.2.2013, was without any basis. It was further stated that as per Clause 31(a), the builder was to deliver possession within 24 months or within 6 months extended period subject to exclusion of Sundays, government holidays etc. and, as such, the date of possession came to be 22^nd May 2014. It was further stated that no excess amount has been charged from the complainant and, therefore, question of any refund did not arise. It was further stated that offer of possession vide letter dated 11.08.2015 was a matter of record. It was further stated that the word “provisional possession’ used in the letter meant that on clearance of the outstanding dues, finishing touch to the unit would be given so as to enable the Opposite Party to handover the said unit forthwith to the complainant. It was further stated that accepting the request of the complainant, after adjusting penal liability of Rs.2,19,945/- towards outstanding dues, the complainant was asked to pay Rs.44,198/- as final remaining amount.

10. It was further stated that all the defects pointed out by the complainant had been fixed and the unit was made ready for possession forthwith, however, the complainant, by making one excuse or the other, has been avoiding taking possession thereof. It was further stated that till date, the complainant has not come forward to get the registration of the unit done. It was further stated that the demand of legal expenses of Rs.15,901/- are charges and are payable by the allottee at the time of registration. It was further stated that IDC @1% is also chargeable from the allottee on every unit at the time of registration and, therefore, Rs.39,000/- are also liable to be paid by the complainant. It was further stated that as regards width of the roads and parking space etc., the layout plans had duly been approved and proper spaces have been kept for the provisions required. It was further stated that unit, in question, is ready for possession, but the complainant is not coming forward to take the same. It was further stated that the Opposite party was neither deficient, in rendering service nor it indulged into unfair trade practice. The remaining averments, made in the complaint, were denied.

11. The complainant filed rejoinder by way of his own affidavit, wherein he reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of the Opposite Party.

12. The complainant, in support of his case, submitted his own affidavit, by way of evidence alongwith a number of documents.

13. The Opposite Party, in support of its case, submitted affidavit of Sh. Dheeraj Shama, its duly authorized representative, alongwith a number of documents, by way of evidence.

14. We have heard the complainant in person and Counsel for the Opposite Party, and, have gone through the evidence and record of the case, carefully.

15. The first preliminary objection raised by the Opposite Party was that since the property, in question, is situated at Mohali, this Commission has no territorial jurisdiction to entertain and try the complaint. According to Section 17 of the Act, a consumer complaint can be filed, by the complainant, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction, whereof a part of cause of action arose to them. In the instant case, Endorsement Form (F-2) (Annexure A-1) for transferring the ownership/rights in the said independent floor, in question, in favour of the complainant, was submitted by the Sh. Kanwalpreet Singh, the original allottee, in the Office of the Opposite Party at Chandigarh. Further the provisional allotment letter dated 24.01.2011 (Annexure A-2) and letter dated 13.07.2011 (Annexure A-4) were issued from the Chandigarh Office of the Opposite Party i.e. SCO 143-144, First Floor, Sector 8-C, Madhya Marg, Chandigarh. Annexure A-5 (Colly) is letter dated 29.04.2013 written by the complainant to the Manager, Omaxe Ltd., Chandigarh. Further letters dated 04.04.2013 (Annexure C-5 colly), letter dated 14.12.2013 (Annexure A-6), letter dated 19.12.2013 (Annexure A-7), letters dated 17.04.2014 (Annexures A-8 & A-9), letter dated 24.04.2014 (Annexure A-10),, demand letter dated 20.02.2013 (Annexure A-11) and letters (Annexures A-12) at Page 78 up-to Page 99, were issued form the Chandigarh office of the Opposite Party as the same bear the Stamp of its Chandigarh office. It means that a part of cause of action arose to the complainant, within the territorial Jurisdiction of this Commission. This Commission has, therefore, got territorial Jurisdiction to entertain and decide the complaint. The objection taken by the Opposite Party, stands rejected.

16. To defeat claim of the complainant, the next objection raised by the Opposite Party was that the complainant, being investor, had purchased the floor, in question, for earning profits, as and when there is escalation in the prices of real estate and, as such, he would not fall within the definition of a consumer, as defined by Section 2(1)(d)(ii) of 1986 Act. It may be stated here that there is nothing, on record to show, that the complainant is a property dealer, and is indulged in sale and purchase of property, on regular basis. In the absence of any cogent evidence, in support of the objection raised by the Opposite Party, mere bald assertion to that effect, cannot be taken into consideration. Otherwise also, in a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. Consumer Complaint No.137 of 2010, decided on 12.02.2015, by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. The principle of law, laid down, in Kavita Ahuja’s case (supra) is fully applicable to the present case. Under these circumstances, by no stretch of imagination, it can be said that the flat, in question, was purchased by the complainant, by way of investment, with a view to earn profit, in future. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta, Revision Petition No. 3861 of 2014, decided on 26.08.2015. The complainant, thus, falls within the definition of ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by the Opposite Party, in its written reply, therefore, being devoid of merit, is rejected.

17. It is evident on record that one Sh. Kanwal Preet Singh booked one independent floor of 1500 sq. ft. on plot measuring approx. 300 sq. yards by making payment of Rs.6,65,000/- i.e. 20% of basic sale price, which was Rs.33,25,000/-. After making payment of Rs.6,65,000/- by the complainant to Sh. Kanwal Preet Singh, allotment rights were endorsed in favour of the complainant vide endorsement form dated 19.01.2011 (Annexure A-1). Independent Floor No.579 Q/First Floor, measuring 250.84 sq. mts./300 sq,. yards having built up area of 1500 sq. ft. approx.. in the said project was provisionally allotted to the complainant vide provisional allotment letter dated 24.01.2011 (Annexure A-2), the total cost whereof was Rs.34,70,000/- i.e. Rs.33,25,000/- as basic sale price (BSP), Rs.40,000/- & Rs.85,000/- on account of club & Power Back-up installation cost respectively as additional cost for the said unit & Rs.20,000/- towards Interest Free Maintenance Security (IFMS). Subsequently, allotment letter/Buyer’s Agreement for independent floor was duly executed between the parties on 04.02.2011 (Annexure A-3). It is also evident from Annexure-B (Part – III) (Page 67) that the complainant opted Plan B: Interest free construction linked payment plan. As per Clause 31(a) of the allotment letter, development of the unit was to be completed within 24 months or within an extended period of six months, from the date of start of construction, subject to force majeure conditions. The construction started on 22.06.2011. Thus, computing 24+6 months period, possession was to be offered by 21.12.2013. It is also evident that the complainant, by and large, had made the payment of installments in time. As per statement dated 15.10.2015 (Annexure A-18) (Page 89), against the total payable amount of Rs.38,57,711.45, a sum of Rs.36,45,203.77, stood received by the Opposite Parties and Credit note amount is shown to be Rs.2,19,945.21.

18. The first question, which falls for consideration, is, as to whether there was delay in handing over possession of the unit, in question. It is evident from record that allotment letter (Annexure A-3) was issued on 04.02.2011. Clause 31(a) relating to possession reads as under:-

“31(a) The Company shall put its best efforts to complete the development of the Unit within 24 (Twenty Four) months or within an extended period of six months from the date of start of construction, subject to force majeure conditions [as mentioned in Clause (b) hereunder] or subject to the Allottee(s) as well as other Unit Allottees making timely payment or subject to any other reasons beyond the control of the Company. No claim by way of damages/compensation shall lie against the Company in case of delay in handing over the possession on account of any of the aforesaid reasons and the Company shall be entitled to a reasonable extension of time for the delivery of possession of the said Unit to the Allottee(s). The aforesaid period of development shall be computed by excluding Sundays, Bank Holidays, enforced Govt. holidays and the days of cessation of work at site in compliance of order of any Judicial/concerned State Legislative Body.”

19. Thus, computing 24 months period from the date of commencement of construction i.e. 22.6.2011 (Annexure A-19), the possession was to be delivered by 21.06.2013. As per aforesaid clause, another extended period of six months subject to force majeure, was available to the Opposite Party to hand over possession. The Opposite Party has stated that period was to be computed by excluding Sundays, Bank Holidays, enforced Govt. holidays and the days of cessation of work at site in compliance of order of any Judicial/concerned State Legislative Body and a period of around five months was on this account. Apparently, for seeking six months extension beyond 24 months, the Opposite Party owes an explanation, if the delay was on account of force majure conditions but nothing by way of cogent evidence to this effect has been placed on record. Thus, when no explanation for extension of six months period has been furnished, the Opposite Party at the most could be allowed one out of the two benefits i.e. either six months extension beyond 24 months or five months period on account of Sundays/Holidays etc. This Commission in Consumer Complaint No.153 of 2015 titled ‘Mr. Madan Lal Taneja and another Vs. M/s Omaxe Chandigarh Extension Developers P. Ltd.’ decided on 03.11.2015, facts of which were almost identical, held that Opposite Party was to hand over possession within 30 months period from the date of start of construction. Thus, the possession of the unit, in question, was to be delivered by 21.12.2013. The possession, in the instant case, was offered in August 2015. The letter offering provisional possession dated 11.08.2015 (Annexure A-14) reads as under:-

“Dear Sir/Mam,

First, we want to congratulate you for becoming owner of your dream house amidst Punjab’s greenest tree-line and one of the most beautiful skylines.

While you were raising your dreams in your imagination, we simply made sure to realize them as quickly and beautifully as promised. Therefore, we are as eagerly waiting to give you the prized possession of your dream house as you are. A simple sign of it is the rapid construction of the round-about, completion of the grand and long awaited Club Aura in its last phase, birds already making way to the Dew & Rainbow Parks, finishing touch being given to the Oasis- the 7 acre park, and the commercial complexes coming soon.

Be the Proud owner-in-possession of your dream house in our Prestigious Project “OMAXE SILVER BIRCH”, which is a logical destination of growing aspirations, a home to some of the finest elements of accomplished lifestyle. In this regard, we take immense pleasure to inform you that allotted above said unit is on the verge of completion.

We hereby offer you provisional possession of the said unit upon compliance of necessary formalities by you including payment of balance sale consideration as stated in the Statement of Account annexed hereto as Annexure-A to this Letter within 15 days to the date of this letter. Upon realization of said amount, the final finishing touches to your Residential Unit will be taken up and; on completion of codal formalities and registration of Conveyance Deed for said unit in your favour, the possession of the above said unit will be handed over to your goodself as per the terms of the Allotment Letter.

Now, you are sincerely requested to make payment of your balance dues towards the said unit as per the statement of account enclosed herewith in as Annexure-A, within 15 days from the date of this letter.

Assuring our best services. Please do the needful at the earliest.”

20. The contents of aforesaid letter clearly reveal that possession offered was provisional subject to compliance of necessary formalities including payment of balance sale consideration. The contents of aforesaid letter also indicate that unit was on the verge of completion, meaning thereby that the same was not complete in all respects. The balance sale consideration payable was Rs.2,66,265.75Ps. On receipt of the aforesaid letter, the complainant vide his letter dated 14.08.2015 wrote to the Opposite Party that penalty amount due according to Clause 31 was to be adjusted. The complainant also pointed out excess payment of Rs.16,400/- and deficiencies in the unit, in question, allotted to him, which were rectified by the Opposite Party by end of May, 2016 only. Thus, unit, in question, was not complete when provisional possession was offered on 11.08.2015. There is, thus, delay of around 2½ years in offering possession.

21. The next question, which falls for consideration, is, as to what amount of penalty, the complainant is entitled to on account of delayed possession. Computing 30 months period including six months extended period, as stated above, from the date of commencement of construction on 22.6.2011, possession was to be offered by 21.12.2013. The provisional possession was offered on 11.08.2015 (Annexure A-14). The penalty @Rs.10/- per sq. ft. per month comes to Rs.16,400/- per month and a total sum of Rs.3,22,180/- (from 22.12.2013 to 10.08.2015) was payable to the complainant at the time of offering provisional possession. Thus, nothing was payable by the complainant when provisional possession was offered.

22. The Opposite Party in its letter dated 18.08.2015 (Annexure A-16) admitted that penalty on account of delay was Rs.2,19,945/- and, therefore, after giving adjustment for the same, the Opposite Party sought payment of final amount of Rs.44,198/- from the complainant. Thus, the credit offered by the Opposite Party towards penalty for delayed period was on the lower side and consequently, demand for payment of Rs.2,66,265.75Ps was also unjustified. Since the apartment, in question, was having certain defects, which have been rectified by end of May, 2016, the complainant is entitled to penalty in terms of Clause 23 and 31(a) of the Allotment Letter, which from 22.12.2013 to 31.05.2016 (29 months 10 days), comes to Rs.4,80,893/-. Since benefit of penalty amount in the sum of Rs.2,19,945/- was admitted by the Opposite Party in its letter dated 18.8.2015 (Page 86, Annexure A-14), balance amount of Rs.4,80,893.00 (-) minus Rs.2,19,945.00 = Rs.2,60,948.00 is payable to the complainant by the Opposite Party.

23. The next question, which falls for consideration, is, as to whether excess payment in the sum of Rs.16,323.12 was charged by the Opposite Party on account of increase in area of the unit, in question, and the complainant was entitled to its refund. As is evident from the contents of letter dated 14.12.2013 (Annexure A-6), the Opposite Party informed the complainant that the changes in the building plan of the complex were duly approved, consequent to which, the area of the provisionally allotted unit was increased by approx. 140 sq. ft and the revised area of the unit arrived to 1640 sq. ft. Vide this letter, the Opposite Party also requested the complainant to make payment of proportionate outstanding towards increase in the area of the unit on or before 28.12.2013 as per demand letter. As admitted by the Opposite Party in letter dated 14.12.2013, the increased area was to be charged at the original booking rate. The relevant para of letter dated 14.12.2013 is extracted hereunder:-

“We have provisionally allotted you a Unit bearing No.579Q admeasuring tentative area of 1500 sq. ft. on First floor in the aforesaid Residential Township and executed an Allotment Letter/Agreement dated 2/4/2011 (MM-DD-YYYY) in your favour. Keeping in mind the overall betterment of the Residential Complex/best utilization of the area, changes in the building plan of the aforesaid Complex had been suggested by the Architects of the Company, which was duly approved by the sanctioning authority and these lead to change in the size of your provisionally allotted Unit, thereby an increase of area of approx. 140 sq. ft. in the size of the aforestated provisionally allotted Unit. Thus, the revised area for the Unit arrived to 1640 sq. ft. instead of old allotted Unit. Increased area will be charged at the original booking rate.”

It is the case of the complainant that the Opposite Party instead of charging for the increased area @Rs.2,216.67 per sq. ft, 2 per sq. feet and, as such, an excess amount of Rs.16,323.12 was charged by the Opposite Party, which is to be refunded to the complainant. In view of contents of letter aforesaid, the Opposite Party could charge for the increased area, as admitted by it in the aforesaid letter, at the original booking rate. Since the Opposite Party, for the increased area, charged at higher rate, the complainant is entitled to refund of Rs.16,323.12/-.

24. As regards legal charges of Rs.15,801/- and IDC fee @1% i.e. Rs.39,300/-, the Opposite Party in Paras 41, 42, 43, and 44 of its written statement has simply stated that the same are chargeable from the allottee. Demand raised is for Rs.39,300/- each on account of Registration Fee and IDC Fee. The complainant has disputed demand with regard to IDC fee. It may be stated here that the Opposite Party in its letter dated 13.07.2011 had clarified to the complainant that no additional payment would be demanded except in case of increase in EDC and IDC by the concerned Government Authorities. No cogent evidence to the effect that IDC fee is payable, has been brought, on record, by the Opposite Party. Therefore, IDC fee of Rs.39,300/- shall be payable by the complainant if the same is a government levy/fee/charge, and on satisfaction of complainant to this effect by the Opposite Party. The legal expenses in the sum of Rs.15,801/- are, however, payable by the complainant.

25. The next question, which falls for consideration, is, as to whether the complainant is entitled to refund of Rs.61,050/- on account of other charges paid to the Opposite Parties. The complainant vehemently argued that cost of electricity meter (Rs.26,050/-) is extremely higher. When the complainant disputed the charges, the Opposite Party vide letter dated 27.2.2015 (Annexure A-13) has clarified that the same were charged as per Clause 13 of the Agreement and Annexure-B annexed thereto, on account of electrical sub-station cost-1; meter cost; utility cost & as infrastructure cost/cess (Govt. levy)-1. That being the case, the complainant, in our opinion, is not entitled to refund of charges on account of proportionate cost of sub-station (Rs.10,000/-), Utility cost (Rs.4,000/-), Infra-structure cost/cess (Govt. levy-1) (Rs.21,000/-). The cost of individual electricity meter in the sum of Rs.26,050/- is undoubtedly on the higher side. The chart (OP-4) includes pre-metering charges in the sum of Rs.13,500/-. Since the chart includes cost of Dual Source Energy Meter in the sum of Rs.6,500/-, the charges on account of pre-paid metering system (Rs.13,500/-) are illegal. The complainant is, therefore, entitled to refund of Rs.13,500/-.

26. In view of above facts of the case, the Opposite Party is also under an obligation to compensate the complainant, for deficiency in rendering service on account of inordinate delay in offering possession, thereby inflicting mental agony and causing physical harassment to him.

27. No other point, was urged, by the Counsel for the parties.

28. For the reasons recorded above, the complaint, is partly accepted with costs, in the following manner:-