District Consumer Disputes Redressal Commission ,Faridabad.

Consumer Complaint  No. 191/2022.

 Date of Institution:05/04.2022.

Date of Order:25.10.2023.

Hitesh Kumar Verma, son of Shri Jagdish Singh, B-5/802, NHPC Residential Complex, Surajkund Road, Sector-41, Faridabad.

Presently residing at:

Green Power Residency, flat No. 19-B, Tawar-A4, Sector-45, Greater Faridabad, District Faridabad, Haryana.

                                                          …….Complainant……..

                                                Versus

1.                M/s SLF Anushree Apartments (A.O.P.) M-95, Lower Ground Floor, Greater Kailash II, New Delhi-110048, through its authorized person/Directors.

2.                M/s Anushree Home Developers Pvt. Ltd., Regd. Office at B-101, Durga Vihar, Devli Road, Khanpur, New Delhi-110062, through its authorized person/Directors.

3.                M/s Swatantra Land & Finance Pvt. Ltd., Having Regd. Office at M-95, Lower Ground Floor,Greater Kailash-II, New Delhi-110048. Through its authorized signatory/Directors.

                                                                              …Opposite parties

BEFORE:            Amit Arora……………..President

Mukesh Sharma…………Member.

Indira Bhadana………….Member.

PRESENT:                   Sh.  Bijender Sharma,  Advocate for the complainant.

                             Sh.  Som Kataria, Advocate for Ops No.1 to 3.

ORDER:   

                             The facts in brief of the complaint are that the complainant and various other persons became members of a society known as Green Power Welfare Society (bearing registration No. 254 of 2010-11, registered under Societies Act 21 of 1860, having its registered office at 603, Urja Vihar, CGHS, GH-9, Sector-45, Faridabad-121003(Haryana) in the year of 2011. The complainant was allotted membership No. 135 and his motive was to purchase a flat for his residence. Opposite parties No.1 to 3 Developers/Builders were engaged in the business of developing the colony and residential flats and in view of the membership, Opposite parties offered to build residential flats for the members of the aforesaid society and entered into a Builder Buyer Agreement with them on 27.03.2012. The Builder Buyer Agreement was accordingly reduced into writing and was signed by the complainant and by Sh. Ajay Madan son of Shri V.K. Madan, as authorized representative on behalf of all respondents/Opposite parties No.1  to 3. As per Builder Buyer Agreement dated 27.03.2012, OP No.2 M/s Anushree Home Developers Pvt. Ltd. owned land to the extent of 10.925 acres within the revenue estate of village Martjipur(residential zone of Sectors 75&76) District Faridabad and assured the complainant that they had obtained all requisite permission from the concerned departments of the Government for developing a group housing colony on the aforesaid land. As per BBA agreement, they allotted flat No. 19-B to the complainant situated on 18^th floor of Tower No. A-4 of the Group Housing Colony. The basic sale price of the said flat payable by the complainant was fixed at Rs.29,50,000/- (Rupees twenty nine lakhs fifty thousand) besides EDC and IDC charges and service tax. The complainant had paid a sum of Rs.2,00,000/- towards covered car parking space and as per agreement dated 27.03.2012, complainant had already paid a sum of Rs. 7,25,000/- to the respondents. It was further submitted that respondents kept on raising demand after

demand and  he was forced to make payments of exorbitant demands, because a threat was extended to the complainant in case the demanded amount was not deposited within the time, the allotment of the flat would be canceled and in order to avoid any dispute a huge amount was already paid by the complainant to respondents. As per agreement, the basic price of the said flat was Rs. 29,50,000/-. Besides this basic price, the complainant was liable to pay taxes, which comes out to Rs. 87,615/-. Besides this, the complainant was also liable to pay taxes, which comes out to Rs.87,615/- and car parking of Rs. 2,00,000/- alongwith service tax of Rs.6180/-. He was also liable to pay EDC and IDC @ Rs.175/- per square feet which comes to Rs.3,21,300/- and power backup charges which is Rs. 69,200/- and applicable tax on it of Rs.2508/- which were not disputed. Therefore, the total amount as per BBA dated 27.03.2012, it comes to total amount of Rs. 36,36,803/- and  respondents already charged an amount of Rs.48,33,013/- from the complainant, thus, an extra amount of Rs.11,96,210/- . It was further submitted that complainant was given the possession of the fat on 29.04.2018 after a long delay of about three year of stipulated date 26.03.2015 and when he visited the flat, he found that flat was not ready and so many work of construction was pending. Complainant requested the respondents to return the excess amount of Rs. 11,96,210/- paid by him to respondents and to execute the conveyance deed in respect of the flat. In reply, they raised further demand of payment of Rs.1,77,933/- vide their letter dated 07.07.2020. Considering the circumstances as sated hereinabove, the complainant was seeking refund of the excess money paid by him to the opposite parties. The aforesaid act of opposite parties amounts to deficiency of service and hence the complaint.  The complainant has prayed for directions to the opposite parties to:

a)                refund the excess amount of Rs.11,96,210/-  so charged by respondents from the complainant over and above the actual due amount.

 b)                pay Rs.5,00,000/- as compensation for causing mental, physical  harassment  and financial loss suffered by him.

2.                Opposite parties put in appearance through counsel and filed written statement wherein Opposite parties refuted claim of the complainant and submitted that  Director Town and Country Planning, Haryana (DTCP) granted license No. 61 of 2007 dated 09.02.2007 in the name of Anushree Home Developers Pvt. Ltd. (ADHDPL) c/o Swatantra Land & Finance Pvt. Ltd. (SLFPL) for developing a Ground Housing Colony on the abovementioned land measuring 10.925 acres. Due to road network, plan of Government, Group Housing Colony had been divided into three parts i.e. Site-1, Site-2 and Site-3 and vide letter bearing Memo No. ZP-221/7699 dated 02.09.2008, DTCP approved the building plans of the Group Housing Colony and as per plans of Group Housing Colony, two Towers being Towers No. A-3 and A-4 containing 152 flats in aggregate with total Basement area of 4467.14 square meter and Stilt area of 924.08 square meter can be constructed on Site-1(i.e. land measuring about 1.7 acre forming part of Rectangle No. 5 Kila No. 17/1 (5-17), 17/2 (2-3), 24(8-0) situated within the revenue estate of village Martjapur, District Faridabad, Haryana. It was further submitted that a society by name of ‘Green Power Welfare Society (GPWS)’ was registered with District Registrar of Firms and Societies, Faridabad, Haryana under the Societies Registration Act, 1860 having its registered office at 603, UrjaVihar CGHS, Plot No. 9, Sector 45, Faridabad-121003. After coming into force of Haryana Registration & Regulation of Societies Act,2012, District Registrar of Societies issued revised certificate of registration of GPWS. GPWS is non-profit making society and had 152 members. It was further submitted that all funds available in

the hands of GPWS belongs to its members, similarly, all liabilities of GPWS are liabilities of its members and one of Aims and objectives of GPWS was “ To undertake and or assist to arrange construction activities with a view to building houses/apartments/flats/villas for the members interested in purchase of above and transfer the same to those members who have made the payment for the same as per the decided payments terms” 

In view of the then existing general circumstances in which flat buyers money was getting struck with builders, GPWS decided to enter into an agreement with Anushree Home Developers Pvt. Ltd. i.e. OP No.2 and Swatantra Land & Finance Pvt.Ltd. i.e. OP No.3 for the purpose of construction of flats for members of GPWS by itself. Vide agreement dated 04.09.2011, Ops No. 2&3 agreed to sell 152 flats of Towers A-3 and A-4 to be constructed on Site-1 of aforesaid Group Housing Colony to the members of Green Power Welfare Society. As per clause 2.1 of Agreement dated 04.09.2011, GPWS was required to pay consideration @ Rs.975/- per square feet of Floor Area Raio (FAR). Clause 2.1.1 of aforesaid agreement lists the items (life cost of land, cost of obtaining specified licenses/approvals) which are included in aforesaid consideration. Clause 2.1.2 of lists the items which are excluded from the aforesaid consideration. As per clauses (c) to (k) of clause 2.1.2 of agreement, cost of construction and development was not included in the aforesaid consideration and same was to be borne by GPWS and its members. As per clause 5 of Agreement dated 04.09.2011 following are the responsibilities of GPWS:

“5.     Responsibilities of GPWS and First Party

5.1     It shall always be the responsibility of GPWS to ensure that :-

5.1.1  Construction of the aforesaid two towers i.e. Tower No.A-3 and A-4

          containing said flats was  completed by the contractors recommended by GPWS at the cost of GPWS in accordance with Rules, Regulations & norms.

5.1.2  Development all roads, parks, open spaces, landscaping, external electrification etc. within Site-1  was completed and maintained by the contractors/agencies recommended by GPWS at the cost of GPWS in accordance with Rules, Regulations & norms.

5.1.3  Internal utility lines like water, sewerage, electricity and strom water lines till the periphery of  Site-1 are laid down by the contractors recommended by GOWS at the cost of GPWS.

5.1.4  Common services and facilities are provided to the owners of said flats.

5.1.5. Appropriate Work contract tax, service tax and all other taxes and Levies in respect of Site-1 were  paid by concerned persons.

5.1.6. Appropriate insurance policies in respect of all labour working in Site-1 had been taken either by contractors or by GPWS.

5.1.7  All labour laws including Minimum Wages Act,1948; Building and other construction  Workers(Regulation of Employment and Conditions of Service) Act, 1996, Child Labour (Prohibition and Regulation)Act,1986, Contract Labour (Regulation and Abolition) Act,1970; Employees Provident Fund and Miscellaneous.

5.1.8  All records and registers required to be maintained under various Labour Laws are maintained by the contractors.

5.1.9  Fines and compensations to the concerned persons in respect of any violation of any law or in  case of any accident or if any injury (including

          death) is caused to any person/workmen at or in relation to Site-1 were paid either by the contractors or by GPWS or by concerned wrong doer.

5.1.10         Alldues of labor and vendors were paid either by contractors or by GPWs.

5.1.11         All data, information and documentation is provided for the purpose of Loan to the individual   Member of the GPWS and also for registration of sale deed of said flat in favour of individual member of GPWS.

5.2     It shall also be the responsibility of GPWS to :

5.2.1  Supervise the works done or to be done by Contractors in Site-1.

5.2.2  Draft declaration to be registered under the provisions Haryana Apartments Ownership Act in  accordance with norms in respect of said flats and common facilities in Site-1, First party shall after verifying the said declaration, sign the same and register the same in accordance with norms. Both the sides shall comply with the provisions of Haryana Apartments Ownership Act”.

It was further submitted that  that opposite party No.1 had executed Builder Buyer

Agreement dated 27.03.2022 with complainant, the said Builder Buyer Agreement was executed as  a part of larger transaction which was a subject matter of agreement dated 04.09.2011. The amount of consideration received by OP No.1 did not include the cost of construction/development  and as per agreement dated 04.09.2011  all responsibility of construction at site rests with members of GPWS, which perform its acts as per collective decisions taken by its members including the complainant therein. The Clause 2.4 of BBA dated 15.03.2012 clearly provides that ‘Any increase in cost of construction/development of Site 1 shall be borne

proportionally by buyer of flats in Towers A-3 and A-4 of aforesaid Group Housing Colony’.  The members of GPWS in Annual General meeting dated 22.12.2013 approved increase in cost of flat to Rs. 44-45 Lacs (excluding taxes). In Annutal General Meeting dated 28.02.2016,members of GPWS further approved increase in cost of flat to Rs.49.19 Lacs (plus taxes). Thus Opposite parties 1 to 3 denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.

3.                The parties led evidence in support of their respective versions.

4.                We have heard learned counsel for the parties and have gone through the record on the file.

5.                In this case the complaint was filed by the complainant  and has prayed to refund the deposited amount with the opposite parties with the prayer to: a)        refund the excess amount of Rs.11,96,210/-  so charged by respondents from the complainant over and above the actual due amount.  b) pay Rs.5,00,000/- as compensation for causing mental, physical  harassment  and financial loss suffered by him.

                   To establish his case the complainant  has led in his evidence,   Affidavit Ex.CW1/A of Hitesh Kumar Verma alongwith Ex.C-1 i.e. Builder Buyer Agreement in which Annexure A is : Construction Linked installment Plan:

Note:

1. Applicable taxes & duties shall be paid extra
2. cost of one covered parking is Rs.2,00,000/-
3. External development charges and internal development charges Rs.175/- per square feet(including interest if any)
4. Power Backup Charges (2KVA) Rs.28700/-

 Ex.C2 i.e. photocopy of Tripartite Agreement, Learned counsel for complainant also led in evidence a letter for the offer of possession Ex.C3, the possession was not given since 2018 and this letter was issued on 15.03.2016 and as per the correspondence done by the opposite parties with the complainant i.e Ex.C4 and complainant also served a legal notice on 06.10.2021      

           On the other hand , counsel for the opposite parties strongly agitated and opposed.  As per evidence of opposite parties Ex.RW1/A affidavit of Shri Ajay Madan s/o Late Shri V.K. Madan, alongwith documents  Ex.R-1 Authority letter,Ex.R-2  Registration Certificate, Ex.R-3 Agreement, Ex.R-4 is the attendance register and resolution.

6.                We have heard counsel for the parties and have gone through the record on case file.

7.                 In the complaint, after going through the evidence led by both of the parties, the Commission of the opinion that as per the Ex.C1 it is clear that Builder Buyer Agreement was duly signed by opposite party and payment was received by opposite parties. No doubt the payment was given by the complainant to the

opposite parties as per demand of opposite parties. But in this complaint, the complainant is also in membership of the Association which was made by GPWS i.e. Green Power Welfare Society. In this complaint, the GPWS is the necessary party to prove the case of the complainant but the complainant Hitesh Kumar was the member of this association and did not plead a party GPWS who has constructed the  flat in question altogether 152 flats and Hitesh Kumar was one of the member which was duly proved by the opposite party as per Resolution and attendance accepted by the opposite party. In the attendance register at Sr. No. 27 duly signed by Sh. Lalit Kumar and in the signed resister or resolution and at Serial No. 135, Hitesh Kumar also signed in this attendance register as well as resolution which are on file. As per the prayer of the complainant to execute the conveyance deed in favour of the complainant without paying the demand money by the Opposite parties. After going through the evidence as well as arguments, it is already settled and agreed between both of the parties that they will take the stamp-paper and other hidden expenses and pay the demanded amount in favour of Ops, then Ops execute the conveyance deed. as per Ex.C1 BBA clause 2.4 in which it is mentioned that “Any increase in cost of construction/development of Site-1 shall be borne proportionally by buyers of flats in Towers A-3 and A-4 of aforesaid Group Housing Colony and decision in this regards would be final & binding to the buyer” and Annexure A which is account statement of OP No.2 i.e. M/s SLF Anushree Apartments and Ex.C2 Tripartite agreement in which at Point No. 18 it is mentioned that ‘That before the sale deed conveyance deed/lease deed in favour of the borrower is executed, he/she shall get the prior consent from the SBI’ which shows that there is no deficiency on the part of the opposite parties No.1  to 3 and 152 flats were constructed by the GPWS which is not the party in this complaint and the complainant is also the member of GPWS and as per the attendance register and resolution i.e. Ex.R4 at Sr. No. 27 and 135 and they have enhance the money from Rs.29,50,000/-  to Rs.36,36,803/- and then Rs.48,33,013/- as per Annexure A i.e. Statement account of Op No. 2 i.e. M/s Anushree Apartments with the permission and resolution passed by GPWS. In the interest of justice, there is no negligence on the part of OPs No. 1 to 3 as complainant himself is a part of GPWS and they have constructed the flats in question.  Learned counsel for Opposite party also argued at length and stated at Bar that Ex.R3 which is duly signed by the opposite party. This is a Tripartite agreement and executed at Faridabad on 04.12.2011 amongst :

1.             M/s Anushree Home Developers Pvt. Ltd., a company incorporated in India  under the provisions of Companies Act, 1956 having registered office at B-101, Durga Vihar, Devli Road, Khanpur, New Delhi-110062 represented by Sh. Yogesh Sharma and Sh. Harsh Kumar, who have been duly authorized by the resolutionpassed by the Board of Directors of the company which is annexed herewith as Annexure 1 hereinafter referred to as “AHDPL” (which expression shall unless it be repugnant to the context mean and include the said Company, its legal representatives successors, assigns, administrators, authorized representatives and nominees etc.) of the party of first part.

2.             M/s Swantantra Land and Finance Pvt. Ltd., a company incorporated in  India under the provisions of Companies Act,1956 having registered office at M-95, Lower Ground Floor, Greater Kailash-II,New Delhi represented by Sh. Ajay Madan, who has been duly authorized by the resolution passed by the Board of Directors of the company which is annexed herewith as Annexure-II hereinafter referred to as ‘SLFPL” (which expression shall unless it be repugnant to the context mean and include the said company, its legal representatives, successors, assigns.

3.             M/s Green Power Welfare Society, registered with District Registrar of Firms & Societies Faridabad, Haryana under the societies Registration Act, 1860 having its registered office at 603, Urja Vihar CGHS, Plot No. 9, Sector 45, Faridabad-121003 (Haryana) represented by Sh. Rajesh Kumar (President) Shri Onkarnath(Vice President), Shri Manohar Lal Meena,(secretary) and Sh. Rajendra Singh RAwat (Treasurer), Sh. Ajay Arora (Executive Member) duly authorized by the authorizeation which is annexed herewith as Annexure-III hereinafter referred to as ‘GPWS” (which expression shall unless it be repugnant to the context mean and include the said association, its members, its legal representatives, successors, assigns, administrators, authorized representatives and nominees etc.) of the party of second party. Copy of Certificate of registration and By-Laws of GPWS are enclosed herewith as Annexure-IV. in which there is detailed mentioned what is included and what is excluded.

2.1.1 Following items are included in aforesaid consideration:

1. Cost of land site-1
2. cost of obtaining following licenses, approvals and No objection Certificate(i.e. NOC)

1. NOC in respect of heights of building which has been obtained from Airport Authority of India vide Memo No. AAI/NOC/2007/104/495-97 dated 14.05.2007. This NOC was valid till 13.05.2010.
2. Approval of Demarention and Zooning Plan which has been obtained  from DTCP vide Memo No. 13421 dated 25.05.2007.
3. NOC from Haryana State Pollution Control Board, Panchkula vide memo No. HSPCB/2007/TAC-A553 dated 08.10.2017. This NOC was valid till 07.10.2009.
4. Approval of Fire fighting Scheme obtained from the Director, Urban Local Bodies, Haryana, Chandigarh vide memo No. FA/2008/26018 dated 24.06.2008.
5. Approval of building plans, which has been approved by DTCP vide Memo No. ZP221/7699 dated 02.09.2008. This approval is valid till 01.09.2013,
6. Approval of Service Plan Estimates obtained from Chief Engineer, HUDA, Panchkula vide memo No. 2748 dated 14.05.2009.
7. Approval for Environment Clearance obtained from State Environment Impact Assessment Authority, Haryana vide memo No. SEIAA/HR/09/1158 dated 12.11.2009.
8. Renewal of License No. 61 of 2007 upto 8^th February,2013.
9. One Renewal of NOC mentioned in clause 2.1.1 (b)(i) in accordance with norms
10. Cost of architects for services rendered by him till date of execution of this agreement.
11. Any other approvals which is not mentioned hereinabove but otherwise required or yet to be taken for start of construction work at Site-1 as per Statutory Rules.

3. External Development Charges(i.e. EDC) and infrastructure Development charges(IDC) at the interim rates mentioned in letter of intent(IOI) bearing memo No. 5DP (IV)-2006/25734 dated 04.10.2006 including interest and penalties thereon due to delay in their payments.
4. All taxes fees, charges and dues of Government department which stands demanded till the date of execution of this agreement. However, it is clarified that enhancement of EDC over and above interim rates of EDC mentioned in LOI is excluded from aforesaid consideration.

2.1.2.Following items are expressly excluded from aforesaid consideration, which shall be paid separately by GPWS at relevant stage:

1. Enhancement of EDC by virtue of Notification/Letter NO. HUDA-CCF-Acctt-I-2011/17903 dated 25.05.2011 including interest and penalties thereon due to delay in their payments.
2. Any increase in Government fees and charges or Taxes which may take place after execution of this agreement even with retrospective effect.
3. Cost of construction including the fees of professional cost of labour and material.
4. Cost of development & maintenance of roads, parks, landscaping, open spaces, external electrification within Site-1.
5. Cost of laying down of interest utility lines like Water, Sewerage, electricity, storm, water lines etc within Site-1.
6. Any fees/charges of Government required  to be paid during construction or after completion of construction including the fees and charges for obtaining occupancy certificate, proportionate cost of obtaining completion certificate and proportionate cost of other expenses which may be common for Site-1, Site-2 and Site-3 of said Group Housing Colony.
7. Penalties levied by Government in respect of any violation during construction of said flats or development or maintaining of Site-1.
8. Cost of maintaining the roads, parks,open spaces landscaping etc within Site-1.
9. Cost of obtaining NOC from Fire department and Electric Department in respect of aforesaid two towers.
10. Proportionate cost of renewal of License No. 61 of 2007,w hich may fall due after 8^th February,2013.
11. Proportionate cost of renewal of Approvals and NOCs (if required) mentined in clause2.1.1(b)(i) to (ix).

As per the agreement, the only cost of the land was included and construction of the 152 flats were given to GPWS and they also argued that Ops No.1 to 3 have taken the money for the land i.e. 1.7 acres and was constructed by GPWS with 2+2 Members and they also open an account in which money for construction taken by GPWS not by OPs. He also argued at length that nothing was given to opposite

parties No. 1 to 3 in excessive. The payment was made for the unit only to the GPWS and he is also the member as he signed the resolution as well as attend the meetings. There is no deficiency of the OP No. 3, the complaint should  be dismissed.

8.       In the complaint after going the evidence and as per Ex.C1 BBA clause 2.4 in which it is mentioned that “Any increase in cost of construction/development of Site-1 shall be borne proportionally by buyers of flats in Towers A-3 and A-4 of aforesaid Group Housing Colony and decision in this regards would be final & binding to the buyer” and Annexure I which is statement account of OP No. 2 as mentioned below at page No.45 of Ec.C4:

and Ex.C2 Tripartite agreement in which at Point No. 18 it is mentioned that ‘That before the sale deed conveyance deed/lease deed in favour of the borrower is executed, he/she shall get the prior consent from the SBI’ which shows that there is no deficiency on the part of the opposite parties No.1  to 3 and 152 flats were constructed by the

GPWS which is not the party in this complaint and the complainant is also the member of GPWS and as per the attendance register and resolution i.e. Ex.R4 at Sr. No. 135 and they have enhanced the money from Rs.29,50,000/-  to Rs.36,36,803/- and then Rs.48,33,013/- as per Annexure A i.e. Statement account of Op No. 2 i.e. M/s Anushree Apartments with the permission and resolution passed by GPWS. In the interest of justice, there is no negligence on the part of OPs No. 1 to 3 as complainant himself is a part of GPWS and they have constructed the flats in question.

9.                As per the prayer of the complainant to execute the conveyance deed in favour of the complainant without paying the demand money by the Opposite parties. After going through the evidence as well as arguments, it is already settled and agreed between both of the parties that they will take the stamp-paper and other hidden expenses and pay the demanded amount in favour of Ops, then Ops execute the conveyance deed.

 10.             Therefore, Commission is of the opinion that there is no deficiency in service on the part of Ops No.1 to 3 as the payment was made by the complainant to the Association which was made by GPWS i.e. Green Power Welfare Society as per the Tripartite agreement. Resultantly, the  complaint is dismissed. Copy of this order be sent to the parties concerned free of costs. File be consigned to the record room.

Announced on:  25.10.2023                                 (Amit Arora)

                                                                                  President

                     District Consumer Disputes

           Redressal  Commission, Faridabad.

                                                (Mukesh Sharma)

                Member

          District Consumer Disputes

                                                                    Redressal Commission, Faridabad.

                                                (Indira Bhadana)

                Member

          District Consumer Disputes

                                                                    Redressal Commission, Faridabad.