Haryana

Karnal

CC/679/2021

Om Parkash - Complainant(s)

Versus

M/s Ras Development Private Limited - Opp.Party(s)

Gurmeet Singh Khillan

07 Aug 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                      Complaint No. 679 of 2021

                                                      Date of instt.03.12.2021

                                                      Date of Decision:07.08.2024

 

Om Parkash son of Shri Ramji Dass, resident of house no.274, sector-16, Urban Estate, Karnal. Aadhar no.3222 6889 1458. Mobile no.90348-92608.

                                               …….Complainant.

                                              Versus

 

1. RAS Development Private Limited Company, RAS Residency, Sector-35, near Palm Residency, through its Managing Director/Manager.
2. M/s Ras Development Private Limited Company, head office 812-A, Chiranjiv Tower, 43 Nehru Place, New Delhi through its Managing Director/Manager.

 

…..Opposite Parties.

       

Complaint Under Section 35 of Consumer Protection Act, 2019.

 

Before   Shri Jaswant Singh……President.

              Ms. Sarvjeet Kaur……Member

          

Argued by:  Shri G.S.Khillan, counsel for the complainant.

                    Shri Amit Gupta, counsel for the OPs.

                  

                    (Jaswant Singh, President)

ORDER:                     

          

                The complainant has filed the present complaint Under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that complainant purchased/booked a one BHK Studio bearing unit no.0-214 from the OPs as per schedule payment plan on 15.12.2010. The complainant followed the Schedule Payment Plan agreement and deposited all the dues on time and a total amount of Rs.6,66,334/- was deposited against the basic price of the unit of Rs.5,94,000/-. The OPs assured the complainant that the possession of the unit will be handed to the complainant within three years from the date of booking of the Studio falling which, complainant shall be entitled to the compensation and Rs.5/- per sq. ft. The price of the studio also consists of accessories of LED TV, a double bed and an air conditioner. The complainant is an electrician by profession and does not have enough financial sources. The complainant has purchased the Studio for his residential purpose and he was more concerned with the possession of the unit which the OPs had promised to deliver within three years from the date of purchasing of the unit. The complainant had to pay 5% of the total sale price of the unit at the time of delivery of the possession by the OPs. However, the possession has not been delivered to the complainant despite of depositing 95% of the sale price and extra charges. The complainant on number of occasions visited their office for the delivery of the possession but OPs did not deliver the possession of the Studio to the complainant within stipulated time and as such are liable to pay an amount of Rs.1650/- per month for the delayed possession. The unit/project is still incomplete and the OPs have not still offered the possession of the unit despite of so many visits of the complainant. The unit/studio has not been ready and fit for taking the possession as the basic requirements of electricity, parking, sewerage, road and water are lacking and the unit is incomplete. The OPs had also charged an amount of Rs.50,000/-  without the consent of the complainant for the construction of a member club which till date has not been constructed. The complainant never entered into an agreement with the OPs regarding the same. Moreover, the member of club is not even in existence. The OPs also raised illegal demand from the complainant for delivery of the possession of the unit/studio in which, the OPs have claimed a fictitious amount of Rs.50,000/- for external electricity charges and fire fighting charges, Rs.10,000/- for power backup, and Rs.20,000/- for electric meter and security. Besides these, the OPs also illegally demanded VSAT amounting to Rs.6790/- from the complainant. Therefore, said demands are illegal without any base and right. The OPs have not been granted completion certificate for their project from the Government and the OPs are still incomplete to offer the possession to the complainant as well as to other unit holders. Moreover, the aforesaid charges are not applicable to the case of the complainant as there is no completion of the project and a lot of construction work has to be done at the site. OPs are neither entitled for the aforesaid illegal demand nor the aforesaid amount have been agreed to be payable to the OPs. The charges of the electrification and electric meter and security are high handeness and the complainant is not liable to pay this amount. The OPs have provided the copy of ledger account to the complainant which is self explanatory of their high handedness and unfair practice. The OPs are demanded illegal charges from the complainant as they have raised an illegal demand of Rs.2,50,581/-. The complainant requested the OPs a number of time not to charge the aforesaid illegal charges and also demanded the completion of unit but OPs are adamant and are threatening to impose illegal penalty on the complainant if the aforesaid charges are not paid to the OPs. The complainant is entitled to Rs.1650/- per month as compensation from the month of December, 2013 till the completion of the project as well as the unit which as of now comes out to be Rs.1,58,400/-. The complainant also requested the OPs to construct the unit as per specifications and to obtain a completion certificate from the concerned authorities and handed over the possession of the unit but OPs are adamant and pressurizing and threatening the complainant to accept the incomplete unit against his interest. The OPs have also retained the plot buyer agreement illegally and malafidely. In this way there is deficiency in service and unfair trade practice on the part of the OPs. Hence complainant filed the present complaint seeking direction to the OPs to handover the possession of the unit in question after obtaining completion certificate from the competent authority and not to charge illegal charges and to pay Rs.1,58,400/- as compensation as on date for delayed possession and to pay Rs.2,00,000/- as penalty on account of deficiency in service and to pay Rs.11000/- as litigation costs.

2.             On notice, OPs appeared and filed its written version raising preliminary objections with regard to maintainability; locus standi; cause of action; jurisdiction and concealment of true and material facts. On merits, it is pleaded that M/s RAS Development Private Limited is one of the growing professional companies in the Indian Real Estate Industry with projects spread across the country. The aforesaid company have a proven track record for excellence, spanning more than 11 years and is widely recognized for pioneering global best practices, transparency and 100% reliability in the real estate industry and it is the one of the few real estate companies in India in which a professional team manages the entire scope of operations. M/s RAS Development Pvt. Ltd. is developing an Affordable Group Housing Apartment Complex at Sector 35, Karnal, under the name and style of ‘RAS Residency.” The complainant out of his own free will had applied for the allotment of a 1 BHK Studio Apartment having super area of 330 sq. feet in the aforesaid complex being developed by the OPs company. Pursuant thereto, unit no.0-214 measuring 330 sq. feet was allotted to the complainant. The basic sale price of the said flat was Rs.5,94,000/-. Apart from the aforesaid amount, the complainant was also required to pay club membership fees of Rs.50,000/-, IFMS @ Rs.20/- per sq. ft.  i.e.600, cost of open car parking Rs.50,000/-, EDC/IDC @ Rs.173/- per sq. ft. i.e. Rs.57090/-, FFC &ECC charges of Rs.50,000/- and power backup charges of Rs.10,000/- and electric meter charges of Rs.20,000/-. Apart from the above, the complainant was also required to pay stamp duty/registration charges, service tax etc. in respect of the unit allotted to him. The complainant opted to pay the cost of the flat in installments, as per the payment schedule to be agreed with the company. The details of the amount payable were clearly mentioned in the application form submitted by the complainant, for allotment of the aforesaid unit in his favour. Timely payment of the amount of installment/s was the essence of the agreement between the complainant and the OPs. In case of delay on the part of the complainant to pay the amount of installments, the complainant was liable to pay interest on the outstanding amount from the due date. Subsequently, a flat buyer agreement was also sent to the complainant for execution but the complainant dishonestly, mischievously did not return the said flat buyer’s agreement to the OPs. The complainant committed default/s in paying the amount of monthly installments. The complainant paid total sum of Rs.6,46,391/- to the OP but thereafter stopped making payment of the amount due in respect of the flat in question. Repeated reminders were issued by the OPs company to the complainant to pay the balance amount but complainant did not pay the balance amount. As on date, an amount of Rs.2,50,581/- is outstanding against the complainant in respect of the installments already accrued and interest, service tax etc. thereon. The complainant was repeatedly requested to pay the outstanding amount as well as the amounting of pending installments but the complainant refused to pay the same. It is further pleaded that OPs have already raised construction of the unit allotted to the complainant as per plans and has always been and is still ready to deliver the possession of the unit in question to the complainant on receipt of the balance amount outstanding in respect of the unit in question. It is further pleaded that complainant had purchased the flat in question with an intention of earning profit by selling the same at a premium. The complainant never intended to use/occupy the unit allotted to him personally. However, due to recession in the real estate market, the complainant could reach/find a buyer who was prepared to pay a premium to the complainant for the flat purchased by him and as such, the complainant  stopped paying the amount of installments in respect of the unit in question and started raising unnecessary disputes with regard to the total amount payable by him, so that under the grab of the said disputes, he may be able to delay the payment of installments of the unit in question. The present complaint filed by the complainant for further delay of payment of the balance amount due in respect of the unit in question and to also delay receiving possession of the unit in question, which is lying completed at the spot. It is further pleaded that the OPs company is still ready and willing to accept the balance amount due in respect of the amount in question and delivered possession of the flat to the complainant. There is no delay on the part of the OPs’ company to compete the construction of the flat and deliver possession of the same to the complainant and as such, the OPs are not liable to pay an amount of Rs.1650/- per month to the complainant for the alleged period of delay. There is no deficiency in service and unfair trade practice on the part of the OPs. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

4.             Parties then led their respective evidence.

5.             Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of discount offer Ex.C1, copy of schedule of payment Ex.C2, copy of agreement plan Ex.C3, copies of payment receipts Ex.C4 to Ex.C14, copy of statement of account Ex.C15, copy of legal notice Ex.C16, postal receipts and AD Ex.C17 to Ex.C19 and closed the evidence on 07.11.2022 by suffering separate statement.

 6.            On the other hand, learned counsel for the OPs has tendered into evidence affidavit of Om Parkash Ex.OP1/A, copy of application form Ex.OP1, copy of construction linked payment plan Ex.OP2, copy of payment schedule Ex.OP3, copy of letter to complainant Ex.OP4, copy of account statement Ex.OP5, copy of agreement between OPs and Sunita Sukhija Ex.OP6, copy of allotment letter of unit no.0-116 dated 28.01.2017 Ex.OP7, copies of allotment letters dated 28.01.2017 Ex.OP8 and Ex.OP9, copy of letter dated 16.09.2014 Ex.OP10, reminder letter dated 01.08.2013 Ex.OP11, copy of letter dated 24.07.2023 Ex.OP12, photographs Ex.OP13 to Ex.OP17 and closed the evidence on 03.08.2023 by suffering separate statement.

7.             We have heard the learned counsel of the parties and perused the case file carefully and have also gone through the evidence led by the parties.

8.             Learned counsel for complainant, while reiterating the contents of complaint, has vehemently argued that complainant booked a one BHK Studio bearing unit no.0-214 from the OPs. Complainant deposited an amount of Rs.6,66,334/- to the OPs. The possession of the unit was to be handed to the complainant within three years from the date of booking. The possession has not been delivered to the complainant within stipulated period despite of depositing 95% of the sale price and extra charges and OPs are enjoying the hard earned money of the complainant from the date of its deposit.  Complainant approached the OPs several times and requested to complete the construction work and handed over the possession of the unit in question but OPs did not do so and lastly prayed for allowing the complaint. Learned counsel of complainant relied upon the case laws titled as Ireo Grace Realtech Pvt. Ltd. Versus Abhishek Khanna and others in Civil appeal no.5785 of 2019, date of decision 11.01.2021; Mr.Mridula Rajbanshi and another Vs. Umang Realtech (P) Ltd. 2021 SCej 1087 (NCDRC); Jose Mariano Corderio Versus M/s Kalash Real Estate Developers in First appeal no.12 of 2018, date of decision 01.02.2021; Deepak Goyal and another Versus M/s North Star Apartments Pvt. Ltd. and others, in consumer case no.871 of 2017, date of decision 28.09.2021 and Sunny Ahuja Versus Raheja Developers Ltd. in consumer case no.180 of 2020, date of decision 03.01.2022.

9.             Per contra, learned counsel for the OPs, while reiterating the contents of written version, has vehemently argued that complainant had applied for the allotment of a one BHK Studio in the project of the OPs. A unit no.0-214 was allotted to the complainant. The basic sale price of the said flat was Rs.5,94,000/-. The complainant was also required to pay club membership fees of Rs.50,000/-, IFMS @ Rs.20/- per sq. ft.  i.e.600, cost of open car parking Rs.50,000/-, EDC/IDC @ Rs.173/- per sq. ft. i.e. Rs.57090/- FFC &ECC charges of Rs.50,000/- and power backup charges of Rs.10,000/- and electric meter charges of Rs.20,000/- but he has not paid the same. The complainant is himself defaulter in not paying the amount of monthly installments. An amount of Rs.2,50,581/- is outstanding against the complainant. The complainant was repeatedly requested to pay the outstanding amount but the complainant refused to pay the same. OPs are still ready to deliver the possession of the unit in question to the complainant on receipt of the balance outstanding amount. There is no delay on the part of the OPs to complete the construction of the flat and deliver possession of the same to the complainant and lastly prayed for dismissal of the complaint.

10.           We have duly considered the rival contentions of the parties.

11.           Admittedly, complainant purchased a unit/studio in the project of the OPs. The basic sale price of the unit was Rs.5,94,000/-. It is also admitted that complainant has deposited more than the basic sale price of the unit in question till the end of the year, 2015.

12.           The complainant has alleged that the possession of the unit was to be delivered within three years from the date of booking but OPs have neither completed the development work within stipulated period nor fulfilled all the terms and conditions of the agreement.

13.           On the other hand, OPs have alleged that the complainant is himself defaulter as he had not made the payment as per the payment plan. Both the parties relied upon the Construction Linked Payment Plan (G-4) ExC2/Ex.OP2, which is as under:-   

Stage	Charges
Booking	(35% BSP)
Casting of Raft	10% BSP
Casting of Ground Floor Slab	10% BSP
Casting of 1st floor Slab	10% BSP+50% (car+50%) club charges+ Allied Charges
Casting of 2nd floor slab	10% BSP+50% EDC+IDC charges
Casting of 3rd floor slab	10% BSP+50% EDC+IDC charges
Casting of 4th floor slab	10% BSP
At the time of possession	5% +50% car+50% Club +ECC+IFMS

 

14.           As per the payment plan, only 5% plus 50% car + 50% Club + ECC + IFCC was to be paid at the time of possession. The basic sale price of the flat in question is Rs.5,94,000/- . As per the payment receipts Ex.C4 to Ex.C14, complainant had paid an amount of Rs.6,66,334/- to the OPs. Hence, it has proved that the complainant made the payment as per the Construction Linked Payment Plan and remaining payment is to be paid at the time of delivery of possession. Thus, the plea taken by the OPs that complainant has not made the payment in time is having no force.

 15.          The complainant booked the unit in question in the year 2010 and made the payments upto the year 2015.  The OPs have alleged that as per application form Ex.OP1, the cost of the unit was to the tune of Rs.8,37,690/-. On perusal of the said application, it reveals that the said amount has been written lateron as the said amount has been written by the different person with different pen. Furthermore, the OPs relied upon the Flat Buyers’ Agreement Ex.OP6 of Flat No.0-116 of Smt. Sunita Shukla. The total sale consideration of the said flat is Rs.6,74,124/- only.  

 16.          The complainant was allotted flat No.0-114 and Smt. Sunita Shukla was allotted flat No.0-116 in the same project and of same value.  Total sale consideration of the flat of Smt.Sunita Shukla is Rs.6,74,124/- and the OPs have alleged that the total sale consideration of the flat of the complainant is Rs.8,37,690/-. Since, both the flats are of the same measurement, same locality and in the same project, hence, total sale consideration of  Rs.8,37,690/- of flat of the complainant  is arbitrary and not justified.

17.           The OPs have alleged that the project has been completed within stipulated period. In order to prove their version, the OPs have relied upon the photographs Ex.OP13 to Ex.OP17 of the units. However, above photographs does not contain any date, month and year from which it can be ascertained that the OPs had completed the project since long. Moreover, the OPs have failed to place on file completion certificate issued by the competent authority. The best evidence with the OPs to prove their version was Smt.Sunita Shukla, whose buyer agreement has been placed on file, but neither she has been examined nor her affidavit has been tendered in evidence by the OPs for the reason best known to them.  Thus, it has been proved that there is delay on the part of the OPs to complete the construction work in the project. Hence, the complainant cannot be made to wait indefinitely for the delivery of the possession. In this regard, we are relying upon the following case laws:- 

18.           In Abhishek Khanna’s case (supra) the Hon’ble Supreme Court held that delay in delivery of possession of apartment-Refund-Factum of delay in completing construction and making offer of possession is undisputed fact in this case-Court directed developer appellant to refund entire amount deposited by respondent buyers as categorized in two categories by Court. Further, in Mridula Rajbanshi’case (supra) the Hon’ble National Commission held that Builder-Allotment of flat-Complainants cannot be made to wait indefinitely for the delivery of possession and the act of the opposite party in relying on Force Majeure clause while retaining the amounts deposited by the complainants, is not only an act of Deficiency in Service but also of Unfair Trade Practice-Direct the Builder Co. to refund the entire principal amount received alongwith compensation in the form of simple interest @ 9% per annum from the date of deposit till the actual date of payment together with costs of Rs.50,000/- within a period of four weeks from today, failing which the amount shall carry interest @ 12% per annum till its realization. Further, in Jose Mariano Cordeiro’s case (supra) the Hon’ble National Commission held that Possession delayed-Housing Residential flat-opposite party, failed to deliver the possession of the flat within the stipulated period-Deficiency in service on the part of the OP-Since deficiency in service was established on the part of the Respondent/opposite party-sought interest and compensation-Scope-Held-If builder is found deficient in service is entitled to pay compensation during period of delay period-complainant entitled for compensation for delayed handing over of possession.  Further, in Deepak Goyal’s case (supra) the Hon’ble National Commission held that Delay in possession of flat-Unfair Trade Practice-Complaint before National Commission-under clause-8 (a) of Flat Buyer’s Agreement promised period for offer of possession was 36 months with grace period of 90 days from the date of execution of the FBA, subject to exception as given under clause 8 (b), 38, delay in approval of sanctioned plan and issue of Occupation Certificate-promised period for offer of possession expired in November, 2015-Bulding not taken any plea and offer of possession was delayed either for delay in sanction of layout plan or in issue of Occupancy Certificate-Possession notice was issued on 27.11.2018, with delay of three years-Held, allottee cannot be made to wait for indefinite period for possession complaint allowed with cost of Rs.one lakh-Direction to builder to refund amount Rs.66,58,319/- alongwith interest @ 9% per annum”.

19.           Keeping in view the ratio of the law laid down in the abovesaid judgments, facts and circumstances of the complaint, the act of the OPs by not completing the project within stipulated period amounts to deficiency in service and unfair trade practice.

20.           The complainant has paid an amount of Rs.6,66,334/- and as per the forgoing discussion, the actual total sale consideration including all the amenities was to the tune of Rs.6,74,124/- (according to the cost of the flat of Smt. Sunita Shukla). Hence, the complainant is only liable to pay an amount of Rs.7790/-(Rs.6,74,124-Rs.6,66,334) to the OPs as balance sale consideration of the flat in question.

21.           In view of above discussion, we allow the present complaint and direct the OPs to handover the actual physical possession of the unit in question to the complainant on receipt of balance amount of Rs.7790/- from the complainant in toto. We further direct the OPs to pay interest @ 9% on the deposited amount i.e. Rs.6,66,334/-, from the date of last deposition of payment i.e. 15.09.2015, till delivery of actual possession of the flat in question to the complainant. We further direct the OPs to pay Rs.25,000/- to the complainant on account of mental agony and harassment and Rs.11,000/- towards the litigation expenses. This order shall be complied with within 45 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance

Announced

Dated:07.08.2024                                                                     

                                                               President,

                                                     District Consumer Disputes

                                                     Redressal Commission, Karnal.

 

                        (Sarvjeet Kaur)

                          Member