STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
Complaint Case No |
: |
27 of 2013 |
Date of Institution |
: |
22.4.2013 |
Date of Decision |
: |
10.9.2013 |
- Sonika Bhardwaj w/o Sh. Harinder Kumar r/o H.No.3423, Sector 24-D, Chandigarh.
- Sh. Harinder Kumar s/o Sh. D. K. Sharma r/o H.No.3423, Sector 24-D, Chandigarh.
……Complainants.
VERSUS
M/s Omaxe Chandigarh Extension Developers Pvt. Ltd., SCO No.139-140, First Floor, Sector 8-C, Madhya Marg, Chandigarh through its Director/Manager.
....Opposite Party.
Complaint under Section 17 of the Consumer Protection Act, 1986.
BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.
SH. DEV RAJ, MEMBER.
Argued by:Sh. Harinder Kumar, Complainant No.2, in person.
Sh. Munish Gupta, Advocate for the Opposite Party.
PER SH. DEV RAJ, MEMBER.
The facts, in brief, are that being allured by the advertisement which appeared in “The Tribune” dated 1.8.2010 (Annexure A-1), the complainants contacted the Opposite Party directly in their office. It was stated that the complainants were provided a brochure (Annexure A-2) alongwith an application form (Annexure A-3) containing the basic terms and conditions. It was stated that the Opposite Party told that the rate of Rs.25.58 Lacs, quoted in the advertisement was the lowest rate for a 3 BHK floor in Silver Birch Project. It was further stated that the Opposite Party also explained that the said rate was all inclusive and for 1st Floor built, on a plot area of 200 sq. yds under down payment plan option, with basic sale price of Rs.24,30,000/-. It was further stated that the complainants intended to purchase second floor built, on plot area of 300 sq. yd., without going for any preferential location. It was further stated that the complainants were given various assurances viz. 8% discount on the basic sale price and additional charges worked out as Rs.32,75,200/-, Rs.40,000/-; Rs.20,000/- and Rs.85,000/- (totaling Rs.1,45,000/-), the carpet area would be less than the built up area of 1500 sq. feet (ranging between 8% to 10% less then the built up area); quoted rate of Rs.34,20,200/- was confirmed to be inclusive of all applicable taxes; the basic sale price was confirmed to be inclusive of EDC and IDC and only an increase in EDC and IDC after booking were to be applicable proportionately by all the residents; the price being quoted was firm and escalation free; provision of 24 hour power back up of 5 KVA and generator would be installed; the allottees of ground, first and second floor would be having common right on 40% terrace while on the remaining 60% terrace area, the allottee of 2nd floor would be having exclusive right; if after allotment of the floor, it was not found feasible to construct the unit, then under Clause 8, the earlier plan would have to be revised; the construction work had already started; allotment letter would be issued within a period of 45 days of booking the unit (Annexure A-2); the possession of the unit was promised to be August 2012; Rs.3 Lacs were required to be paid at the time of booking and after booking of unit, demand of balance amount of 20% of BSP would be made at the time of allotment only (Annexure A-2).
2 It was further stated that the amount of 20% of BSP less Rs.3 Lacs was to be paid at the time of allotment. It was further stated that the Opposite Party further assured that various documents viz. plans, designs, layout of the project, titles, approvals of the Government would be made available to the complainants, at the earliest and before the execution of Buyer’s agreement. It was further stated that based upon the aforesaid assurances, the complainants booked an independent second floor (G+2, Sliver Birch) on 4.8.2010, with built up area of 1500 sq. ft on plot area of 300 sq. yards in Omaxe Chandigarh Extension project at Mullanpur and paid an amount of Rs.3 Lacs at the time of booking the said flat vide receipt dated 04.08.2010 (Annexure A-4). It was further stated that although the allotment of unit was to be done within 45 days of booking i.e. by 17.9.2010, neither any demand for balance of 20% of basic sale price, was made, nor any allotment was made within the specified time period, by the Opposite Party. It was further stated that the Opposite Party, raised demand of 20% aforesaid, viz.Rs.3,76,400-00 vide letter dated 3.11.2010 (Annexure A-5) and informed that the allotment would be done only after payment of this amount, which was totally against the assurances, given at the time of booking the unit. It was further stated that the complainants paid the said demanded amount of
Rs.3,55,040-00 on 13.11.2010 vide receipt (Annexure A-8). It was further stated that a provisional allotment letter (Annexure A-9) was issued on 24.1.2011 i.e. after a delay of more than four months from the due date which was 17.9.2010. It was further stated that as per letter dated 3.11.2010 (Annexure A-5), the names of the complainants could be considered for allotment only if the complete payment of 20% was made before the same. It was further stated that the issuance of provisional allotment letter confirmed that no additional amount was pending to be paid at the time of allotment and the price quoted was inclusive of all taxes.
3 It was further stated that the Opposite Party, misquoted the price of the flat to be Rs.33,81,995.25Ps, which after numerous requests/reminders (Annexures A-11 to A-19) was corrected and informed to the complainants on 14.3.2012 vide demand notice dated 4.3.2012 (Annexure A-21), due to which the complainants were put to unnecessary inconvenience for no fault of theirs. It was further stated that on 24.1.2011 (Annexure A-9), the complainants were allotted independent second floor bearing no.579E, however, but the buyer’s agreement containing the detailed terms and conditions was received by them vide letter dated 27.4.2011, on 29.4.2011 (Annexure A-10). It was further stated that the complainants were shocked to see that the said buyer’s agreement contained the clauses, which belied all the promises made at the time of booking the unit. It was further stated that the matter was immediately brought to the notice of the Opposite Party vide letters/reminders (Annexures A-11 and A-12). It was further stated that after correction, fresh agreement was sent to the complainants on 14.3.2012, which contained modification only in relation to correction of basic sale price and adopting the same as Rs.32,75,200/-. However, there were no other changes. It was further stated that the complainants again agitated the matter vide letter dated 19.3.2012 (Annexure A-24), in response to which, the Opposite Party vide its letter dated 18.3.2012 (Annexure A-25), received on 19.3.2012, confirmed that the EDC and IDC at the rate applicable on the date of allotment had been included in the basic sale price of the unit and no additional payment would be demanded by it, except in case of any increase in EDC and IDC by the Government.
4 It was further stated that many other issues raised by the complainants vide letter dated 7.5.2011 (Annexure A-11) remained unsolved, for which numerous letters (Annexures A-31, A-32, A-36, A-38 & A-43) were sent to the Opposite Party. It was further stated that the complainants received a reminder dated 18.9.2012 (Annexure A-37) from the Opposite Party, asking for sending back the signed copy of agreement without uttering a single word, on their representations. It was further stated that the complainants sent a reminder dated 15.10.2012 (Annexure A-38) asking the Opposite Party to resolve all the pending issues. It was further stated that the complainants were shocked to receive a demand notice dated 29.06.2012, on 13.07.2012,
(Annexure A-33) from the Opposite Party claiming an amount of Rs.1,35,183.25Ps. It was further stated that while raising this demand, the Opposite Party cleverly shifted a demand of Rs.74,754/- relating to the period prior to 26.5.2012 plus Rs.2,494.99 as service tax. It was further stated that vide fresh demand notice dated 18.7.2012 (Annexure A-35), the Opposite Party raised a demand of only Rs.57,931.56Ps. It was further stated that the complainants kept on receiving demand notices (Annexure A-39, A-40, A-42, A-45, A-47). It was further stated that the correct break up of installments was as per demand notices (Annexures A-21, A-28 and A-35). It was further stated that in demand notices (Annexures A-39 and A-42), the Opposite Party cleverly inserted a figure of Rs.1,78,000/- under the head preferential Location Charges (PLC), which was totally unwarranted because the complainants never opted for any preferential location and there was no change in the plan and the location of the unit allotted to them.
5 It was further stated that, on the basis of slow progress of construction work, the complainants were deeply worried that the Opposite Party would not be offering timely delivery of the constructed unit to them, which was conveyed, to it (Opposite Party) vide letter dated 19.3.2012 (Annexure A-23). It was further stated that the complainants visited the site in December 2012, and noticed that a large number of generator sets were proposed to be installed in very close proximity to the unit allotted to them, which was in clear contradiction to what had been discussed and promised at the time of booking the unit. It was further stated that vide letter dated 17.12.2012 (Annexure A-41), the complainants informed the Opposite Party that installation of generators, at that site, would create noise pollution, air pollution and vibrations, and cause huge financial loss to them. It was further stated that the complainants would not be able to recover their investment by deciding to sell the property, as market value of the property would fall drastically due to installation of generators at the site. It was also stated that it would also be difficult for the complainants to find tenant for such a property. It was further stated that the complainants are suffering on account of callous and dilatory attitude of the Opposite Party as they are not able to raise loan from the Bank for payment of installments. It was further stated that despite making payment of 71% of the total sale price of the unit, in question, the Opposite Party was unable to resolve the issues raised by them. It was further stated that the terms and conditions entered into and agreed to between the parties were never shown to them at the time of booking of the unit.
6 It was further stated that there has been deficiency, in rendering service, on the part of the Opposite Party, as it failed to act timely on various representations of the complainants and further failed to make available various documents as also failed to deliver possession of the unit within the specified time. It was further stated the Opposite Party also indulged into unfair trade practice as it failed to keep the promises made at the time of booking and gave false assurances to the complainants. It was further stated that the complainants had communicated all the above facts to the Opposite Party vide various letters as also telephonically. It was further stated that a legal notice dated 29.1.2013 (Annexure A-44) was served upon the Opposite Party on 4.2.2013 detailing all the issues. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, for directing the Opposite Party, to handover the vacant possession of the unit, in question, complete in all respects after obtaining necessary sanctions, approvals, NOCs, completion/occupation certificate etc. from the competent authority; get the unit registered with the competent authority; accept the quoted rate of Rs.34,20,200/- inclusive of all applicable taxes; quash the illegal demand of Rs.57,931.56; quash the illegal amount of Rs.1,78,000/- on account of enhancement in the price of unit; correct the unilateral alteration made in the installment plan; indicate the built up area of 1500 sq.ft. in the buyer’s agreement; communicate the super area and carpet area of the unit; indicate the total cost inclusive of EDC, IDC, Service Tax, Cess and cost towards electricity Sub-Station in Annexure B(Part II) of the Buyers Agreement; make available copy of various documents as referred to in the allotment/buyers agreement; suitably modify the buyers agreement as per objections raised in Para 43 of the complaint; pay interest @18% per annum on the payments made for the period of delay in the delivery of possession; shift the location of installation of generators to a location sufficiently far away from the unit in question; pay Rs.5 lacs as punitive damages; Rs.10 lacs for harassment and mental agony; Rs.1 lac for inconvenience caused; Rs.50 thousand for delay in issue of provisional allotment letter; Rs.50,000/- for loss suffered on account of inability to take loans from the banks and Rs.50,000/- as cost of litigation.
7 The Opposite Party, in its written statement, filed by way of affidavit of Sh. Harsh Bhargav, its authorized representative, took up some preliminary objections to the effect that this Commission lacks pecuniary jurisdiction to entertain the instant complaint as although the property in dispute is more than Rs.20 lacs, yet, the reliefs sought for by the complainant are with the intention to bring the instant case within the pecuniary jurisdiction of this Commission by claiming, exaggerated compensation and damages. It was pleaded that the property purchased is for the purpose of investment and, thus, the complainants were not consumers within the meaning of the Act, and as such the instant complaint was liable to be dismissed being not maintainable. It was further pleaded that the complaint was not maintainable as no cause of action having accrued to the complainants had been disclosed therein.
8 On merits, it was stated that the complainants approached the Opposite Party for booking of 1500 sq. ft. flat in the project floated by the Opposite Party, and submitted application form (Annexure A-3) alongwith amount of Rs.3 lacs. It was further stated that the terms of brochure are matter of record and the same do not bind the Opposite Party as the terms and conditions annexed with the application form or the agreement to be entered into between the parties are to prevail. It was further stated that the complainants never approached its Chandigarh office, or any of its representative regarding the aspect of the terms and conditions detailed in the application form. It was further stated that the complainants never asked about the rates. It was further stated that at the time of filling of application form, only the basic sale price and the additional cost plus maintenance security were filled. No amount with regard to preferential location charges could be mentioned as the same was subject to allotment. It was further stated that letter dated 3.11.2010 (Annexure A-5) was written to the complainant requesting them to deposit the remaining amount i.e. 20% of basic sale price less the booking amount on or before stipulated period.
9 It was further stated that the complainants were allotted Flat No.579-E, 2nd floor which was a preferential location. Therefore, the relevant charges duly reflected in the demand letters were demanded from the complainants from time to time. It was further stated that 8% discount of basic sale price was offered to the complainants i.e. after deducting the 5% of the sale price, 3% was to be deducted of the remaining amount. It was further stated that instead of mentioning discount as 5% plus 3%, the same was wrongly mentioned as 8% and necessary correction was made. It was further stated that the amount of Rs.34,20,200/- was never confirmed to be inclusive of all the taxes, whereas, as per clause 11 of the basic terms and conditions all the relevant taxes were to be paid by the complainants from time to time as required by various Govt. agencies in equal proportion. No confirmation regarding the BSP, EDC, IDC or any other charges was made. It was further stated that the basic sale price, was agreed to be paid by the complainants at the rate fixed and the parties were bound by the terms and conditions of the application form. It was further stated that no promise, unless the same was made in writing, binds the Opposite Party. However, the amount of Rs.85,000/- on account of power back up charges was admitted. It was further stated that no promise to install generators at faraway place was made. The assertion regarding complainants having 60% terrace area to their exclusive possession and its use was denied. It was denied that any promise to deliver the possession in August, 2010 was ever made. It was further stated that the complainants did not sign the agreement till date which was sent to them on 27-4-2011 (Annexure A-8) nor returned it to the opposite Party, and, therefore, it could not be said that any agreement was made between the parties. It was further stated that the date of delivery of possession could only be deemed to start once the agreement was signed. It was further stated that the complainants had signed the terms and conditions in the application form for booking after going through all the relevant documents and various clauses detailed therein and as such their allegation regarding buyers agreement, being under the stage of formulation was uncalled for. It was further stated that in their various communications the complainants never raised such a grouse.
10 It was further stated that after depositing the application form alongwith booking amount, the complainants never approached the Opposite Party either personally or in writing. It was further stated that the chart regarding the amount due, prepared by the complainants did not show the true picture, whereas Annexure A-35 shows the picture of the amount to be paid alongwith respective taxes as per the notification (Annexure R-2). It was further stated that the complainants themselves had shown their interest and approached the Opposite Party by submitting application form alongwith booking amount. It was further stated that preferential location could not have been opted at the time of booking and the same was subject to draw. It was further stated that no assurance of allotment within 45 days was ever given to the complainants and thus the date mentioned i.e. 17-9-2010 loses its relevance.
11 It was further stated that after the draw, provisional letter was issued in due course. It was further stated that since payments were made by the complainants on their own sweet will, therefore, the taxes, as applicable, were to be adjusted from the same. It was further stated that letter 24-1-2011 was being interpreted in a wrong sense and the payments made by the complainants were only short by some amount and, thus, the allotment was made and no separate demand was raised. It was further stated that to accommodate and not to cause unnecessary harassment to the complainants, the mistake of BSP, mentioned in the application form was rectified. It was further stated that the complainants were duly informed on 29-4-2011 itself telephonically that they could send the duly signed agreement within 30 days and not within 15 days but they did not choose to send the signed copy of the agreement. However, the opposite party had been sending their representative for collection of the signed agreement, so that the buyers agreement could be executed, but of no use. It was further stated that the complainants were adamant and did not sign the buyers’ agreement which was lying with them. Opposite Parties denied receipt of letters (Annexure A-31, A-32, A-36, A-38 & A-43) and termed the same as fabricated one. It was further stated that the Service tax was charged as per the prevailing law and the demand letter 13-7-2012 was genuine and no juggling of figures, as alleged was done. The receipt of letters (Annexure A-34 & A-35) was also denied by the Opposite Party at any point of time. It was further stated that despite sending various reminders, the complainants failed to pay the service tax and dues which they were bound to pay within time as per schedule. It was further stated that the demand was rightly raised from time to time as per the stage of construction. The averment that the unit allotted to the complainants only faces a park partially was denied on the ground that the complainants were very well aware of the location of the unit. It was further stated that the complainants raised this grouse regarding the unit being preferential located and non-payment of the said charges as they were not satisfied with the said location. It was further stated that the complainants had once approached the Opposite Party with the request not to charge preferential location charges and they were given option of better located floor in the same project of an identical size and location which they did not opt for.
12 The Opposite Party specifically denied that there was slow progress of construction and submitted that the construction work was at the required pace. It was further stated that had the complainant submitted the duly signed buyers’ agreement upto September, 2011, the period of delivery would have started from the said date and as such the Opposite Party was still having more than 9 months to deliver the possession. It was denied that the agreement was prepared unilaterally and without taking into account allottee’s welfare. It was further stated that timely payments of the installments was the essence of the agreement and thus default of payments was bound to result in termination of allotment. It was further stated that Clauses of the buyers agreement were in consonance with the rights of parties and could not be modified in any manner. It was further stated that all the government documents, sanctions and approvals were already seen, verified and agreed to be correct by the complainants. It was further stated that the complainants were not entitled to any relief whatsoever. Lastly, it was stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
13 The complainants, in support of their case, submitted their joint affidavit, by way of evidence.
14 The Opposite Party, filed its written statement by way of affidavit of Sh. Harsh Bhargav, its authorized representative.
15 We have heard Sh. Harinder Kumar, Complainant No.2, in person, Counsel for the Opposite Party, and, have gone through the evidence and record of the case, carefully.
16 Complainant No.2, in person submitted that as per Annexure A-35, no Preferential Location Charges were payable by the complainants but in the agreement, Preferential Location Charges were included. It was further submitted that 60% terrace rights were also disputed by the Opposite Party. It was further submitted that as per Annexure A-3, the built up area was shown as super area whereas the built up area and super area are totally different. The basic sale price of the flat was all inclusive but the Opposite Party was not prepared to mention so in the agreement. It was further submitted that there was delay in giving possession of flat, which was promised to be given within 24 months. As per Clause 23 of Annexure A-3, it was stipulated that “the Company shall endeavor to complete the construction/development of the Independent Floor/Project within 24 months from the date of start of construction or within an extended period of six months, subject to force-majeure conditions and subject to other Independent Floor Buyer(s)/allottees making timely payment or subject to any other reasons beyond the control of the Company......” It was further submitted that the generator to be installed near his flat would be a cause of nuisance.
17 On the other hand, the Counsel for the Opposite Party, submitted that the averments in Para No.39 of the complaint, indicated that the complainants applied for allotment of the unit, for investment purposes, to gain profits at an appropriate stage, by selling the same, at higher rates and transaction was as such commercial. It was further submitted that the construction had started in August 2011 and as per Clause 23 of the agreement basic terms and conditions (Annexure A-3), the period of 24 months plus 6 months was to commence from the date of construction i.e. August, 2011. It was further submitted that the aforesaid period of 30 months would expire in February 2014. It was further submitted that the complaint was prematurely filed, as the cause of action, if any, could arise after 30 months, which period is to expire in February 2014. Regarding service tax, the Counsel for the Opposite Party, clarified that the same was payable by the complainants as per Clause 11 of Annexure at Page 68. The Counsel for the Opposite Party, also referred to Annexure R-2, which is notification of the Government regarding service tax.
18 Application form along with basic terms and conditions, duly signed by both the complainants, and receipt of deposit of Rs.3,00,000-00 as booking amount (Annexure A-3) is on record. Allotment of independent second floor (G+2, Sliver Birch), with built up area of 1500 sq. ft on plot area of 300 sq. yards in Omaxe Chandigarh Extension project at Mullanpur to the complainants provisionally was made vide allotment letter dated 24.1.2011 (Annexure A-9). Payment of Rs.24,43,045/-, by the complainants againstthe total price of Rs.34,20,200/-, which included EDC charges of Rs.1,45,000/- was made. Annexure A-20 regarding due intimation of due installments shows that payment of instalment on commencement of construction was due on 29.08.2011 against which an amount of Rs.8708.64 P. was due against the complainants. Thus the construction was to commence in August,2011. These facts are duly borne on record and are not disputed. It is also clearly in evidence that the opposite party was responsive to the discrepancies pointed out by the complainants.
19 Since the complainants have submitted that there was delay in offering possession of the property, beyond the period prescribed in Clause 23 of the basic terms and conditions
Annexure A-3, the important question, which falls for consideration, is, as to whether the cause of action to the complainants on account of delay in delivery of possession had arisen when the complaint was filed. While the complainants have computed the period of 24/30 months from the date of their application/date of deposit of booking amount viz.4.08.2010 (Annexure A-3 and A-4), the Counsel for the Opposite Party vehemently submitted that the period of 24 months/30 months was to be reckoned from the date of commencement of construction, which as per Annexure A-20, was 29th August, 2011. Reading of Annexure A-20 in conjunction with clause 23 of Annexure A-3, makes it clear that 30 months time would expire in February, 2014. Undoubtedly, period of 24/30 months is to be counted from the date of commencement of construction, which was 29.8.2011.
Clause 23 of the terms and conditions is extracted below:-
“The company shall endeavor to complete the construction/development of the independent floor/Project within 24 months from the date of start of construction, or within an extended period of six months, subject to force-majeure conditions and subject to other independent Floor Buyer(s)/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 offering the possession on account of any of the aforesaid reasons and the company shall be entitled to a reasonable extension of time for the offer of possession of the independent Floor to the Buyer(s)/allottee(s). However, in case of delay in construction of the said independent floor not attributable to delay due to aforementioned reason, the Company would pay to the Buyer(s)/allotee(s) a sum of Rs.10/- (Rupees Ten only).per sq. ft. per month for the period of delay. Similarly, the customer would be liable to pay holding charges @ Rs.10/- (Rupees Ten only) per Sq. ft. per month if he/she doesn’t take the possession of the unit with 30 days from the company issuing notice of possession.”
20 From the afore-extracted clause of the basic terms and conditions, duly signed by the complainants and the document Annexure A-20 produced by them, it is crystal clear that the cause of action to file the complaint could arise to them only in Feb., 2014, the promised date of delivery of possession. The instant complaint having been filed on 22.4.2013, thus, was premature. It is liable to be dismissed, on this ground alone.
21 For the reasons recorded above, the complaint is dismissed being premature, and, as such, not maintainable, with no order as to costs.
22 Certified Copies of this order be sent to the parties, free of charge.
23 The file be consigned to Record Room, after completion
Pronounced.
10.9.2013
sd/-
[JUSTICE SHAM SUNDER (RETD.)]
PRESIDENT
Sd/-
[DEV RAJ]
MEMBER
mp
STATE COMMISSION
(Complaint Case No.27 of 2013)
Argued by: Sh. Harinder Kumar, Complainant No.2, in person.
Sh. Munish Gupta, Advocate for the Opposite Party.
.
Date the 10th day of September, 2013
ORDER
Vide our separate detailed order of the even date, recorded separately, this complaint has been dismissed being premature, with no order as to costs, being not maintainable.
(DEV RAJ)
MEMBER |
(JUSTICE SHAM SUNDER9(RETD.)
PRESIDENT |
|
