For the Appellant Mr Pradeep Mathur, Advocate For Respondent Mr Navneet, Proxy Counsel (VC) ORDER PER SUBHASH CHANDRA 1. The challenge in this appeal under Section 642 of 2016 of the Consumer Protection Act, 1986 (in short, the “Act”) is to order dated 07.12.2015 in Complaint No. 218 of 2014 of the Punjab State Consumer Disputes Redressal Commission, Chandigarh (in short, “State Commission”) allowing the complaint in part and directing the opposite party/respondent herein to deliver physical, vacant possession of the flat to the appellant within one month of the payment of the amounts as per letter dated 19.01.2013 after deducting Rs 1,00,000/- towards maintenance charges. 2. We have heard learned Counsel for the parties and perused the record carefully. 3. The relevant facts of the case, in brief, are that the appellant had been allotted flat no. 706, Block Q, Phase II, Maya Garden Apartments, VIP Road, Zirakpur in a project being developed and executed by the respondent. The sale consideration for this Type B, 3 bedroom flat ad-measuring 1439 sq ft was Rs 31,95,652/- on which a discount of 8% or Rs 2,55,652/- was provided in view of appellant opting for Payment Plan A thereby making the sale consideration Rs 29,40,000/-. This included Rs 80,000/- for car park. Plan A included a down payment of 95% of the total cost to be paid within 45 days with the balance 5% to be paid at the time of possession. The appellant was unable to arrange payment within the time of 45 days due to delays in obtaining the bank loan. Respondent raised a final demand including penal interest on default in payment. Appellant approached the State Commission in CC 218/2014 which came to be decided on contest. Based on the submissions made and appreciation of the material on record, the State Commission directed possession of the flat to be handed over within one month subject to payment of dues excluding maintenance charges. This order has been impugned before us by the appellant who was the original complainant on the ground that the State Commission erred in not appreciating the facts and terms and conditions agreed upon between the parties praying to set aside the impugned order dated 07.12.2015, direct the handing over of possession on payment of the stipulated balance cost (5%), impose penalty of Rs 86,340/- p.a. from June 2012 till possession for delay in delivery of possession with interest @ 20% p.a., and direct refund of Rs.80,000/- for parking charges with interest, compensation of Rs.3,00,000/- for harassment, mental agony and litigation costs with any other order(s) deemed fit. 4. According to the appellant, due to delays on the part of the respondent in obtaining necessary statutory approvals, there was delay in arranging for a loan from the bank on account of which payment as agreed by him was delayed. Appellant submitted that a Tripartite Agreement had been executed between the opposite party, bank and appellant on 15.09.2011 which placed the liability on the opposite party to facilitate the sanction and disbursement of loan in favour of the appellant to be directly paid by the bank to the opposite party towards the consideration towards the flat. It was reiterated that the delay was not due to default on part of the appellant but on account of the delay in sanction of the loan by the bank which had not been appreciated. It was also contended that the respondents had failed to deliver the flat as per their commitment by June 2012 and had also not obtained the requisite statutory permissions and environmental clearances as per the evidence adduced. It was also submitted that the State Commission erred in not appreciating that the respondent was liable to pay Rs 5/- per month per sq ft as penalty on account of delay in handing over possession with effect from June 2012. It was claimed that compensation as interest @ 20% on this penalty should be levied on account of this failure. Appellant states that a loan of Rs 20,00,000/- was sanctioned in September 2011 by Axis Bank, Chandigarh by which time he had already paid Rs 6,91,000/- and therefore payment amounting to Rs 27,93,000/- stood paid. A demand letter dated 19.01.2013 was received by him raising a demand of Rs 3,59,598/- as interest, Rs.83,121/- as service tax and Rs 1,00,000/- as maintenance charges apart from the balance amount of Rs 1,47,000/-. Appellant contends that possession of the flat was to be handed over on or before 30.16.2012 which the respondent had failed to do and therefore, as per the Agreement to Sell dated 08.04.2011, the respondent was liable to pay compensation at Rs 5/- per sq ft per month from the date of delay. It was also claimed that as per Clause 18 of this Agreement, charges imposed by the government or any other authority prior to 31.06.2012 were to be borne by the respondent and therefore there was no liability on him on this account. The demand for maintenance charges of Rs 1,00,000/- without handing over of possession was also disputed. The wooden flooring in one bedroom, electrical and sanitary fittings in the flat had also not been completed. It was alleged that various amenities such as the swimming pool, clubhouse, gate security, community centre and gym had not been completed and therefore the flats were not ready for possession. 5. Per contra, the opposite party/respondent herein submitted that the appellant had no case since the consideration agreed upon between the parties was based on the option of Payment Plan A as per which 95% of the payment had to be made within 45 days which had admittedly not been done by the complainant/appellant herein. It was argued that all necessary approvals had been obtained by it prior to the launch of the scheme and that it was the appellant who had delayed arranging the necessary funds by way of loan for which the liability should be that of the appellant only. It was denied that the promised amenities had not been provided and it was averred that the opposite party/respondent was willing to hand over possession subject to the deposit of the requisite amounts as per demand raised. Respondent contended that the stipulation to hand over the flat by June 2012 was subject to there not being any default on the part of the appellant in the performance of the conditions imposed upon him as per the Agreement. In view of the appellant having defaulted in making payments, he was not eligible for the benefits under Payment Plan A. The claim for compensation for deficiency in service was contested by the respondent. 6. From the record and the submissions made, it is manifest that these submissions have been considered by the State Commission. The State Commission has noted that the Agreement to Sell was executed on 08.04.2011 and that the approval of Government had been obtained on 18.03.2011 and environmental permission on 30.10.2011. The State Commission in its findings has recorded as under: 8. …. In the allotment letter also it was mentioned that the payment of the price of the flat was to be made as per Plan-A. As per the Note appended at the bottom of the allotment letter, if 95% of the amount was not received within 45 days as per Plan A, then Plan-B was to be applicable. Admittedly the said amount was not paid within that period. But the opposite party never reverted to Plan-B as is clear from the letter dated 19.01.2013, Ex C-4, vide which balance price amount of Rs.1,47,000/- was demanded. But the fact remains that the complainant failed to pay the instalments which were payable as per Plan-A within stipulated period. He is relying upon Statement of Account Ex C-3 which was also proved as Ex OP-4. As already said above, 15% of the sale price amounting to Rs 3,41,000/- was payable within 10 days of the booking i.e., on or before 10.10.2010. As per the Statement of Account the same was not paid by that date. Similarly, the second instalment was not paid by the stipulated date. The complainant has tried to allege in the complaint that the opposite party had no tie up with any bank and there was delay in procuring the loan from the bank on account of the late execution of the Agreement to Sell. The Agreement to Sell was executed on 08.04.2011. It cannot be said that this delay was on account of any default on the part of the opposite party. The first instalment of Rs 10,00,000/- was not paid within the stipulated date and the complainant himself was to be blamed for the late execution of the Agreement. Even in the Agreement, payment was to be made as per Plan-A and the same condition, as mentioned in the booking form, was mentioned in the Agreement. There is no such clause in the Agreement vide which the opposite party bound itself for procuring the loan from some bank for the complainant. It was for the complainant to pay the instalments as per Plan-A by the stipulated date irrespective of the date on which the loan was sanctioned by the bank. He himself placed on record the sanction letter issued by Axis Bank. That letter is dated 06.09.2011 and it is mentioned therein that the loan was sanctioned to him to the tune of Rs 20,00,000. He has tried to allege in the complaint and prove by means of his affidavit Ex. CA that the payments were made by the bank directly to the opposite party. Those allegations have been specifically denied by the opposite party in the written reply and in support of the averments made in the written reply the affidavit of Sandeep Bansal Ex. OP-A has been proved. ……. Even after that loan was sanctioned to the tune of Rs 20,00,000/-, he failed to deposit that amount with the opposite party immediately. In all, he deposited Rs 27,93,000/- and the different amounts which were paid by him on different dates are detailed in the Statement of Account. A perusal thereof shows that there was delay in making these payments. 9. As per Clause 4 of the Agreement, it was the absolute duty of the complainant to make all the due and timely payments as per the Schedule. As per Condition no. 18 of the General Terms and Conditions contained in the booking form, the complainant was liable to pay interest at the rate of 20% in case of delayed payments. Thus, the opposite party has every right to demand interest on delayed payments as per that condition and the complainant was bound to pay the same. There was no such deficiency in service on the part of the opposite party in claiming the interest on delayed payments. 10. The position was similar in Kartar Singh Kochhar’s case (supra) and Shankar Lal Gupta’s case (supra). 7. As regards the issue raised by the appellant regarding the liability of appellant to pay the service tax, the State Commission’s finding on this issue is as under: 11. The next question to be decided is whether the service tax was payable by the complainant? Learned counsel for the complainant has placed reliance on Clause 18 of the Agreement in order to show that all taxes were payable by the opposite party itself. For proper appreciation that clause is reproduced below: “That the first party shall be fully responsible for any kind of dues charges, levies etc that may be imposed by any Government/Municipal authority or any other authority on the housing project before 30th of June 2012 i.e. the date of delivery of possession.” A perusal of this condition makes it clear that the taxes etc., levied on the housing project were payable by the opposite party. However, that clause contained in the agreement is to be read along with the General Terms and Conditions agreed upon by the complainant at the time of booking of the flat. Those terms and conditions include Condition No. 7 which reads as under: “The applicant shall bear and pay directly, or if paid by the seller, then reimburse to the seller on demand, Government rates, taxes, cesses, charges, wealth tax, taxes of all and any kind by whatever name called, levy of proportionate development charges, transport, irrigation facilities and power facilities etc. whether levied or may be levied in future on the project (in proportion to the super area of the Unit) or the Unit, as the case may be, as applicable from the date of application of the Applicant. If such charges are increased (including with retrospective effect) after the conveyance/sale deed has been executed, then these charges shall be treated as unpaid sale price of the Unit and the seller shall have first charge on the Unit of the Applicant for the recovery of such charges.” A conjoint reading of the terms of the agreement and these General Terms and Conditions makes it clear that the overall duty to pay the taxes levied on the project was that of the opposite party but ultimately it was for the complainant to pay the same. Therefore, it cannot be said that the complainant was not liable to pay the service tax as demanded by the opposite party. 8. It is evident from the order of the State Commission that due consideration has been made of the contentions of the appellant with regard to the payment plan and the conditions to which it was contingent and the requirement/obligation on part of the respondent to pay statutory dues such as service tax. The contentions of the appellant have been considered in detail with regard to the provisions in the Agreement to Sell and the State Commission has he painstakingly considered the legal provisions in the light of the existing pronouncements of the Hon’ble National Commission in Shankar Lal Gupta vs Avas Ayukt and Anr., in RP no. 3154 of 2005 decided on 07.03.2006 and Kartar Singh Kochhar vs Vatika Limited in CC no. 242 of 2011 decided on 11.01.2013 It is manifest that the appellant after opting for Payment Plan did not make the requisite payments as per his own admission. Its argument that the delay was on account of the respondent not providing the requisite documents or delaying the process for the sanction of the loan cannot be sustained in view of the fact that there was no such commitment even though a Tripartite Agreement between the parties and the bank had been entered upon. It was squarely the responsibility of the appellant to make arrangements for the funds and to comply with the requirements of payment under Payment Plan A. Having failed to do so, the consequences of that liability should be borne by it. As regards the issue of service tax also, the appellant’s contentions are not based upon a conjoint reading of Clauses 18 and 7 which, the State Commission’s order makes clear. 9. For the aforesaid reasons and in the facts and circumstances of this case, we find no reason to disturb the finding of the State Commission. The First Appeal is therefore dismissed as being without merits. Parties shall bear their own costs. 10. Pending IAs, if any, are also disposed of with this order. |
