Haryana

StateCommission

CC/519/2018

RAJESH MADAN - Complainant(s)

Versus

M/S SS GROUP PRIVATE LTD. - Opp.Party(s)

H.S.DHANDI

15 Apr 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

  Date of Institution:11.09.2018

                Date of final hearing:22.03.2024

                                                Date of pronouncement: 15.04.2024

 

Consumer Complaint No.519 of 2018

 

IN THE MATTER OF

 

Rajesh Madan S/o Shri K.C. Madan, R/o House No.97, Sector 12-A, Panchkula, Haryana-134112.

                                                                                       .….Complainant

Through counsel Mr. Vivek Suri, Advocate

Versus

 

M/s S.S. Group Pvt. Ltd., Plot No.77, S.S. House, Sector-44, Gurugram, Haryana-122003 through its Authorized Signatory/Managing Director/Director(s).

….Opposite party

Through counsel Mr. Shubhkarman, Advocate

 

CORAM:   Mr. Naresh Katyal, Judicial Member.

                   Mrs. Manjula, Member.

 

Present:-    Mr. Vivek Suri, counsel for the complainant.

Mr. Shubhkarman, counsel for opposite party.

 

O R D E R

Per:- MANJULA, MEMBER:

 

                   The brief facts giving rise for the disposal of the present complaint are that M/s North Star Apartments Pvt. Ltd. (hereinafter referred to as 'North Star') having its Corporate office at 4th Floor, The Plaza, M.G. Road, Gurugram, Haryana floated group housing complex in the name of "Coralwood' situated in Sector-84, Gurugram. On the basis of advertisement, complainant submitted application dated 10.10.2010 for allotment of residential flat upon which, North Star vide allotment letter dated 20.10.2010 allotted a residential flat No.902, Type-C, Tower- I, 9th Floor in said housing complex, having super are of 1570 sq. feet (145.86 sq. mtrs.) to the complainant. Total cost of the flat was Rs.50,97,920/-. Flat Buyer's Agreement dated12.11.2011 was also executed between the complainant and North Star Apartments Pvt. Ltd and as per the said agreement, possession of the flat was to be handed over within a period of 36 months from the date of execution of agreement with a grace period of three months for applying and obtaining the occupation certificate. Thereafter, M/s North Star Apartments Pvt. Ltd. was amalgamated into M/s S.S. Group Pvt. Ltd. (present opposite party hereinafter referred as "OP") and all rights and responsibilities under the Flat Buyer's Agreement were transferred to and taken over by OP. Said amalgamation was informed by the OP to complainant vide letter dated 15.05.2015.

2.                Complainant paid an amount of Rs.47,41,966/- in total to the OP as per payment schedule and without any delay till 30.06.2017. As per the schedule of payment, the installments were due according to the stage of construction/development work at the site. It was alleged that vide notice for 4th installment, the OP illegally charged interest for delay in payment of 3rd installment. However, the delay had occurred only because the OP itself failed to provide the documents required for obtaining loan like, site plan, 15 years Fard, non-encumbrance certificate of land etc. Complainant requested the OP several times to waive off the interest charged @ 18% p.a., but OP failed to do so.

3.                It was further alleged that vide letter dated 15.06.2013, the OP raised demand of payment on account of revision of super area of the flat. As per the agreement, super area of the allotted flat was1570 sq. ft., but as per the OP the same was increased to 1750 sq. ft. vide above said letter. The said increase was without the consent of complainant.   Thereafter, the complainant requested the OP to provide the details of increased Super area, carpet area and covered area (old as well as new) along with the site plans, building plans duly approved by the competent authorities (old as well as revised) through his mail dated 29.06.2013 wherein it was demanded that the bifurcation of the carpet area (covered and super area of the flat) and common/circulation areas, detailed drawings (old as well as revised) duly approved by the competent authority and furthermore that it was mentioned in the aforesaid letter that still “approx super area” had been mentioned in the demand note and also a copy of notification under which the service tax is being charged on IDC and EDC. The complainant again wrote an e-mail dated 07.08.2013 that the reminder for the payment along with interest was not due to his fault. He again requested to provide the above said details and Vide email dated 31.08.2013, the complainant denied to make the payment for the increased super area for the reason that he had not been provided with the documents as requested by him in his earlier mails.  The OP replied through its e-mail dated 14.11.2013 to the complainant that they had shared the lay out plan in the email dated 07.08.2013 and promised that the calculations for the increase super area would be provided at the time of possession when the super area is final.  The complainant also sought information under the RTI Act as per the letter dated 26.07.2013 from the competent authority regarding the approved building plans.  As per the information supplied by the competent authority vide letter dated 13.08.2013 and 10.12.2018, the actual carpet area of the allotted flat is less than the area mentioned in the agreement by about 100 sq. feet.

4.                It was further alleged that the complainant duly made all the payment as per schedule of payments, but OP failed to hand over the possession of flat to complainant well within the stipulated period, as mentioned in the Flat Buyers Agreement which stipulated that the possession would be delivered within 36 months from the date of singing of the agreement with grace period of 90 days. The Flat Buyers Agreement was signed between the parties on 12.11.2011.   It was also stipulated in the agreement that in case of delay, the OP is liable to pay compensation @ Rs.5/- per sq. ft. on super area on account of delay in handing over the possession of the flat bearing no. 902 Tower-I in the  "The Coralwood", Condominium Complex at Section 84 Gurgaon.  Along with the letter of offer of possession for fit-outs, statement of account giving the details of various amounts due and payable by the complainant despite the fact that the OP till date failed to get occupancy certificate from the competent authorities. However, said offer was for fit outs unit and not for Flat allotted to the complainant and the OP had also mentioned in aforesaid letter that the flat will be handed over upon execution of conveyance deed.

5.                It was further alleged that the OP had also raised demand for Rs.2,19,982/- on account of electricity connection and power backup charges and Rs.87,500/- as interest free maintenance security deposit, which were against the provisions of agreement and amounts to deficiency in service on the part of OP. The complainant prayed that OP be directed to refund the deposited amount of Rs.47,41,966/- along with interest @ 15% p.a. from the date of deposits till its realization; to pay an amount of Rs.5,00,000/- as compensation on account of mental agony and physical harassment; to pay an amount of Rs.55,000/- as cost of litigation.

6.                Notice of the complaint was issued to the OP, upon which OP appeared before this Commission through their counsel and submitted its written statement by taking the preliminary objections that there has been concealment of facts, no cause of action has arisen in favour of the complainant and the complainant does not fall within the definition of Consumer and it was also stated that the complainant indirectly admitted that the respondent had revised the super area of the Flat from 1570 sq. feet to 1750 sq. feet as per the demand notice dated 15.06.2013.  OP also provided the detailed breakup of the super area of the flat vide para 7 of its reply. It was further pleaded that the complainant has not been able to prove that he had booked/purchased the aforementioned flat for his actual usage as per details provided in application form dated 10.10.2010 and thus, he does not fall under the definition of a 'consumer'.   It was submitted that Buyer's Agreement was executed between the parties on 12.11.2011, demand notice qua revised super area from 1570 sq. ft. to 1750 sq. ft. was issued to complainant on 15.06.2013.  Thereafter, offer of possession was issued vide letter dated 10.08.2018 after applying for grant of occupation certificate by the OP in respect of project and occupation certificate was obtained on 17.10.2018. It was further submitted that the complainant himself was a defaulter in making payments as per payments schedule. Complainant from July, 2013 was only making part payment of every installment.  Further it was submitted that the super area as defined as per the agreement was tentative and subject to change till construction and as per clause 1.2 (d) of the agreement the complainant agrees and undertakes to pay for increase in super area immediately on demand by the developer/OP, but in the present case, complainant failed to do so. Moreover, the OP through its e-mail dated 14.11.2013 provided all the details sought by complainant.

7.                It was further submitted that through e-mail dated 14.11.2013, it was clarified to the complainant that increment has taken place in super area only which is very well defined in Annexure-ll of the agreement.   Moreover, the allotment letter and agreement were not executed on the basis of carpet area, hence the dispute regarding carpet area is baseless.  It was further submitted that as per the agreement, possession of unit in question was to be handed over to the complainant within 36 months, if the complainant had fulfilled all the terms and conditions of the agreement.   Further, the delay, if any in construction was caused that was due to non-payment of installments on the part of complainant.   It was further submitted that the OP is ready to pay the delay compensation as per terms of Buyer's Agreement at the time of taking over of actual possession by the complainant and the same shall be adjusted from the due amount.   Finally, it was submitted that there was no deficiency in service on the part of OP and prayed for dismissal of the complaint.

8.                Then the complaint was posted for recording evidence of the complainant, learned counsel for complainant has tendered into evidence affidavit of Shri Rajesh Madan as (Ex.CA), whereby he reiterated all the averments of the complaint and further tendered documents (Ex.C-1 to Ex.C-13 and Ex.C-9/A & Ex.C-9/B) and closed the same on behalf of complainant.

9.                Thereafter, the complaint was posted for recording evidence of OP and learned counsel for OP has tendered into evidence affidavit of Shri Umesh Kumar, Authorized Signatory as (Ex.OPA) along with other documents (Ex.R-OP-1 to Ex.R-OP-5) and closed the evidence on behalf of OP.

10.              After the closure of the evidence by the parties the complainant submitted his written arguments on 04.10.2022. Learned counsel for OP submitted in its written arguments that the Flat bearing Unit No. I-902, which was allotted to the complainant has been cancelled on 28.12.2023 and the cheque of Rs.41,77,166/- has been sent to the complainant.  Upon this, learned counsel for the complainant refused to accept the cheque that it is a short tender   and the amount of Rs.5,64,800/- has been unjustly deducted from the amount of Rs.47,41,966/- actually received by the OP and further submitted that the complainant is not interested in getting the refund of the amount and is interested in getting the possession of the Unit.  Thereafter, the matter was adjourned for 21.05.2024 for arguments on merits. During that course, learned counsel for complainant moved an application on 18.03.2024 for preponement of the hearing by stating that the Flat in question is required by his son who is gainfully employed in Gurgaon and is paying rent in Delhi and in this regard also appended the Rent Agreement as well as the Salary Slip.  The said application was taken up on 21.03.2024 by this Commission and notice in the said application was issued for 28.03.2024, upon which nobody had turned up for the OP despite service, as such the matter was heard and the oral submissions were made by the counsel for the complainant.   

11.              However, the written arguments already submitted by both the sides were perused properly as well as the evidence brought on the record alongwith other documents were also perused.

12.              As per the basic averments raised in the complaint including the contentions raised by the learned counsel for the complainant as well as the opposite party, the foremost question which requires adjudication by this Commission is as to whether the present complainant is entitled to get relief as prayed for in the complaint or not?

13.              It is an admitted fact that the complainant on 10.10.2010(Ex.C-1) applied for allotment of a residential flat in the project of OP, upon which, North Star Pvt. Ltd., vide allotment letter dated 20.10.2010 (Ex.C- 3) allotted a residential flat No.902, Type-C, Tower-I, 9th Floor in the said housing complex, having super area of 1570 sq. feet (145.86 sq. mtrs.) to the complainant.   It is also an admitted fact that total cost of the flat was Rs.50,97,920/- plus service tax as applicable and maintenance security deposit. Flat Buyer's Agreement dated 12.11.2011 (Ex.C-4) is also admitted and as per the said agreement, possession of the flat was to be handed over within a period of 36 months from the date of execution of agreement with a grace period of three months for applying and obtaining the occupation certificate. It is also admitted that thereafter, M/s North Star Apartments Pvt. Ltd. amalgamated into M/s S.S. Group Pvt. Ltd. (present OP) and all rights and responsibilities under the Flat Buyer's Agreement were transferred to and taken over by OP as per Ex.C-5.

14.              Moreover, it is also established that the complainant paid an amount of Rs.47,41,966/- (Ex.C-1, Ex.C-2 & Ex.C-6 colly) in total to the OP as per payment schedule till 30.06.2017 as the complainant had opted for construction linked plan.   It has been argued by the Counsel for the Complainant that there is no delay on the part of the complainant to pay the installments, the 3^rd installment could not be paid in time as the opposite party had not furnished the requisite documents which were necessary for obtaining loan from the bank.  In this process there was a delay and as the documents were not furnished by the opposite party as such the complainant could not avail the loan and paid the 3^rd installment from his own resources.   It was also stated that alongwith the notice for 4^th installment the opposite party demanded the interest on the delayed payment.   It was argued that as per the complainant as mentioned above there was no delay and the charging of the interest was illegal. 

15.              On the other hand, as per the OP the super area as defined in the agreement was tentative and subject to change till construction and as per clause 1.2 (d) of the agreement the complainant agreed and undertook to pay for increase in super area immediately on demand by the developer/OP, but the complainant failed to do so.   Moreover, the OP through its e-mail dated 14.11.2013 provided all the details sought by complainant. Perusal of letter dated 15.06.2013 reveals that the OP raised demand of payment on account of revision of super area of the flat from 1570 sq. ft. to 1750sq. ft. without taking prior consent of the complainant.  Moreover, when complainant requested the OP to provide the details of increased super area, carpet area and covered area (old as well as new) along with the site plan, approved drawings etc., the OP replied through its e-mail dated 14.11.2013 (Ex.C-10) that the same would be provided at the time of possession.  Further, it is pertinent to mention here that in the reply filed by the OP, a table has been incorporated whereby the opposite party has given the calculation of the increased super area which is being reproduced hereunder:

Covered Area of the flat including Balcony	1394 Sq. Ft.
1/3 share in Core Area on Floor (42.06 Sq. Mtrs.)	151 Sq. Ft.
1/21 Share Core Area on Stilt Floor (238 Sq. Mtrs.)	122 Sq. Ft.
1/21 Share Core Area in Basement Lobby (42.06 Sq. Mtrs.)	22 Sq. Ft.
1/21 Share Core Area on Mumty & Machine Room on Terrace Floor (71 Sq. Mtrs)	37 Sq. Ft.
1/798 Share in Common service area in Basement, ESS, STP etc. (1821.20 Sq. Mtr.)	25 Sq. Ft.
Total	1751Sq. Ft.

 16.             On the other hand, the Counsel for the complainant while arguing the matter has drawn the attention of this Commission to the fact that the super area which is being claimed to have been increased in fact has been decreased from the own averments of the opposite party itself.  Covered area of the Flat including Balcony comes to be 1334 sq. feet.  The entry at item no. 3 (share in core area on stilt floor) wherein it has been mentioned as 1/21 ought to have been 1/63 and the said area would be 40 sq. feet instead of 122 sq. feet.   Similarly share in core area in the basement lobby has been mentioned as 1/21 share instead of 1/63 share and the said area would reduce from 22 sq. feet to 7 sq. feet. Share in core area on mumty and machine room on terrace floor 1/21 share ought to have been 1/63 and it comes to be 13 sq. feet. If the same are corrected and added then the total super area of the flat comes to 1570 sq. feet.  which is same as per the agreement. The Counsel for the complainant strenuously argued that wrong calculation has been made by showing 1/21 share instead of 1/63 share because the Tower-I in which the flat of the complainant is allotted comprises 21 floors and each floor has 3 flats. Thus, the common area is to be divided amongst all the Flat owners equally. The Counsel for the complainant has also brought to the notice of this Commission (Ex.C-9/A) i.e. a Certificate issued by Architect which states that the total covered area of the Flat is 1334.18 sq. feet.   A perusal of  Ex.C-9/B also shows that as per the approved drawing plans the carpet area of the flat in square feet is 1169.96 whereas as per the lay out plan annexed with the agreement it was 1265.08 sq. feet. The said certificate has been issued by the Architect based upon the approved site plans/building plans obtained by the complainant under the provisions of RTI Act as mentioned above. It is also a matter of fact that no contrary evidence has been brought on record by the opposite party on the file to this material evidence.

17.              Moreover, it is also a matter of fact that the Flat Buyer Agreement which is relied upon by the opposite party contains clause 7.2 which deals with the aspect that in case the super area is to be increased by more than 10% then the consent of the purchaser/complainant had to be taken whereas in the facts and circumstances of the present case the same was never taken and the opposite party being developer of the project and in fiduciary relationship wanted to exploit the situation by demanding more money. Hence, it is clear that the super area has been decreased by about 100 sq. ft. instead of increasing by 180 sq.ft.

18.              The OP in its written submissions had taken the objection that no cause of action has arisen in favour of the complainant, the complaint is barred by limitation and the complainant also does not fall within the definition of Consumer. The said submissions have been rebutted by the Counsel for the complainant that the complaint is not barred by limitation as averred by the OP because the notice for offer of possession was issued on 10.08.2018 (Ex.C11). The said notice was replied by the complainant on 22.08.2018 with a request to provide the requisite information/documents and subsequently another reminder was issued by the complainant on 25.08.2018 but the OP failed to provide the same. Thus, the complaint is not barred by limitation. The submission of the OP that it had demanded the amount for increase of super area in the year 2013 whereas the complainant has filed the instant complaint on 11.09.2018 is devoid of any merit as the complainant has proved on record that the alleged demand in the year 2013 was totally illegal as the super area was never increased.  It is also a matter of fact that the complainant is consumer and covered under the provision of Act because he had purchased the flat for his self-occupation. The other objection of the OP that the agreement contained the clause of Arbitration is also devoid of any merit. The complainant has chosen the remedy available to him as per law because the provisions of the RERA Act do not exclude the jurisdiction of this Commission. The complainant has availed the remedy which was best to him as per his wisdom.

19.              In view of the facts and circumstances mentioned above, this Commission is of the considered opinion that there is deficiency in service on the part of OP and thus, the complainant is well within his legal rights to get compensation on this count.  Even otherwise also, there is a strong element of physical and mental agony caused to the complainant for his having paid a huge amount in the project believing the statement of the opposite party and still being deprived of and not being put into possession of the flat within the stipulated period and also the illegal demand of raising the super area as well as the interest, under these constrained circumstances, he had to knock the doors of this Commission for seeking justice.   In such like cases, the Commission has to deal with the developers with severe hands who are misusing the funds of the individuals.  As such, the question is answered in the affirmative.   

20.              As regards the rate of interest to be awarded, on account of delay in possession of the flat to the complainant, it may be relevant to keep the following factors into consideration keeping in view the recent periodic revision of repo rate by Committee Monetary Policy of Reserve Bank of India and consequent upward revision of Marginal Cost of Lending Rate (MCLR) by Nationalized Banks, there has been an increase in lending rate by the Nationalized banks.  Accordingly, it would, in considered view of this Commission, be just fair and reasonable to award 9% as the rate of interest to the complainant on the amount which he had paid to the OP.

21.              It is pertinent to mention here that OP admitted in its written version that the OP is ready to pay the delayed compensation as per terms of Buyer's Agreement at the time of taking over of actual possession by the complainant and the same shall be adjusted from the due amount. Moreover, perusal of order dated 13.03.2024 reveals that complainant is not willing to get refund of deposited amount and is interested in getting the possession of unit alone.

22.              In the light of the above observation and discussion, there are sufficient grounds to accept the complaint and while accepting the complaint, the OP is directed to hand over the complete vacant physical possession of the unit to the complainant within 45 days from the date of order as per the total cost mentioned in the Apartment Buyer's Agreement as well as to pay interest @ 9% per annum on the deposited amount on account of delayed possession i.e. from the date the possession as per the Apartment Buyer's Agreement till the date of actual possession and in case of delay in handing over the possession the OP shall be liable to pay interest @12% per annum. The complainant is also entitled to a sum of Rs.50,000/- (Rs. Fifty Thousand Only) as compensation for mental and physical agony. In addition, the complainant is also entitled to an amount of Rs.25,000/- (Rs. Twenty Five Thousand Only) as litigation charges. However, the complainant is also liable to pay outstanding dues in accordance with the terms of agreement without any interest on alleged delayed payments and increased charges of super area as it is established that the super area has not been increased in actual. It is also made clear that in case of non-compliance, the provisions enshrined under section 72 of the C.P. Act would also be attracted.

23.              Application(s) pending, if any, stands disposed of in terms of the aforesaid order.

24.              A copy of this order to be provided to all the parties free of cost as mandated by the Consumer Protection Act, 2019. This order be uploaded forthwith on the website of the Commission for the perusal of the parties.

25.              File be consigned to record room along-with a copy of this order.

 

Pronounced on 15^th April, 2024              Manjula                      Naresh Katyal

                                                                    Member                      Judicial Member

                                                                  Addl. Bench.              Addl. Bench.