This complainant petition has been filed by an intending purchaser u/s 17 of the Consumer Protection Act 1986, (as amended up to date) against the Developer/builder on the allegation of deficiency in service relating to housing construction.
The brief facts of the case are that the complainant Shree Shew Prokash Saha has booked an apartment being No.NRC 211 at 3rd floor , Tower 1, with a car parking space being no. NUC78 on 18.01.2008 with a booking amount of Rs. 3,00,000/- ( Rupees. three lakh only).The said subject property is situated at’ New Town Heights’ at Rajarhat , Kolkata 700156, District(N) 24 Pgs. Which is one of the esteemed Project of the opposite party DLF Limited. The complainant submits that the subject property was booked and an allotment agreement was executed between the parties on 18.01.08 vide no. B738 and as per the agreed terms it was decided that the possession will be delivered within three years from the booking date. The complainant has made payment of entire consideration amount of Rs. 60,10,090/- (Rs. sixty lakh ten thousand and ninety only) but the op. has not delivered the possession of that apartment to the complainant within the stipulated period of three years. on 1st June,2014 the op. has issued a Revised final statement of account of Rs. 533,425/- ( Rupees five lakh thirty three thousand four hundred and twenty five)only towards the stamp duty and Registration charges and claimed another sum of Rs. 51,709/- as further due as other costs including Government charges etc. In reply to the complainant’s letter dtd.30.01.15 the opposite party informed about increase in area due to erection of Power substation in the said complex .Which has increased the area measuring about 100.869.87 sq.ft. But this is not at all maintainable as per clause 9.2 of the said Apartment allotment Agreement. Moreover, construction of two new Towers will inevitable decreased super built up area, such modification are contrary to clause 9.2 of the said Apartment Agreement vide no. B- 738. The complainant by a letter dated 22.09.2015 has forwarded a representation stating all the issues but the opposite party remained silent. Further the complainant sent another letter on 23rd November, 2015 with regard to the transfer of nomination of the registered allocation of the scheduled property in favour of the name of his son. But here also the op. remained silent. The complainant further submits that as per agreement clause no. 14.1 the maintenance charge can should be borne on and from the date of on which the actual possession of the said apartment is taken or on the expiry of 30 days from the issuance of the ’ notice of possession’. Without getting any other way the complainant has approached to the Commission for redressal of his grievances.
On the other hand by filing written version the opposite party M/S DLF Limited has denied and disputed all allegations made against them. The op. has further stated that the Consumer Forum has no jurisdiction to entertain the present complainant petition. It is submitted that as per Agreement both parties have agreed to settle the dispute amicably by mutual discussion or to settle through arbitration or the courts in Kolkata alone and the Hon’ble High Court Calcutta shall have the jurisdiction . It is stated that the complainant has failed to make all the payment demanded in the final demand notice dated 1st June 2014. The op. has made those demands in accordance with the agreement vide letter dated 1st June 2014. The complainant has not cleared his all dues in accordance with the agreement and for that reason the complainant is not liable for delay compensation. The opposite party is fully entitled to construct additional new tower as per agreement .The entire complaint is false , fabricated and nothing but harassing ,fabricated and as such the complaint petition deserves to be dismissed in limini with sufficient costs.
In the present case the sole complainant and the sole opposite party have tendered their evidence on affidavit. Both the contesting parties have filed reply against the questionnaire set forth by their adversaries. Both parties have submitted their brief notes of arguments in support of their respective cases.
Heard the submissions made by the ld. Advocates of both parties. Perused all documents filed by them .It appears from the materials on record and from the submissions that it is an admitted fact that the complainant Shree Shew Prokash Saha has booked an apartment no. NRC211 along with a parking place no. NUC078 at the New Town Heights which is one of the esteemed projects of the op. developer Company at Rajarhat. The subject property was booked on 18.01.2008 with a booking amount of Rs. 3,00,000/-. An apartment allotment agreement was executed in between the parties on that date and as per agreed terms and condition the total consideration amount was decided as Rs.60,10,090/-. The complainant has already made payment of that amount. In the agreement it was stipulated that the opposite party DLF limited will hand over possession of the said apartment within three years from the date of agreement. Therefore, it is clear that as per the said agreement the op. was under obligation to deliver possession within the time frame ie. 18.01.2011.But the fact remains that the op. could not deliver possession within said period and on contrary on 01.06.2014 has sent one Revised Final Statement of Accounts and thereby claimed Rs. 5,53,425/- towards the stamp duty and registration charges and Rs. 51,709.79, as govt. charges @ Rs. 157.51 per sq.ft. and Rs. 6,391/- as service tax. Besides the same the op. has forwarded an invoice of maintenance charges dated 30.06 2015 & 28.05.2015 towards maintenance and up keep charges which he has already paid under protest.
The ld. Advocate of the op. has submitted and also stated in written version that the complainant cannot be entertained by this Commission and it should be referred to the Arbitrator in accordance with the terms and condition of the Agreement. But the Hon’ble Supreme Court in Lucknow Development Authority – vs.-M.K. Gupta III(1993)CPJ 7 (SC), and several other judgments has already observed that Consumer Fora constituted under C.P Act are not bound to refer the dispute raised in the complaint on an application filed u/s 8 of the 1996 Act seeking reference of the dispute to an Arbitral Tribunal in terms of valid arbitration clause in agreement in between the parties. Moreover, when the Hon’ble Supreme Court in a case of Rosedale Developers Pvt. Ltd. – vs. - Aghore Bhattacharya reported in (2015) 1 WBLR (SC) 385, has opined that the remedy of arbitration available to the complainant does not bar the jurisdiction of the Consumer Fora and the Consumer Fora are not under an obligation to refer the matter to the Arbitral Tribunal. The Hon’ble Supreme Court in another case between State of Karnataka- vs.-Vishwabarathi House Building Co-op Society & Ors. Has opined that If two different Fora have jurisdiction to entertain the dispute in regard to the same subject , the jurisdiction of the Consumer Forum would not be barred and the power of the Consumer Forum to adjudicate upon the dispute could not be negated and that the jurisdiction should not and would not be curtailed unless there is an express provision prohibiting the Consumer Forum to take up the matter which falls within the jurisdiction of Civil Court or any other Forum established under some enactment. As such, it can say that there is no bar to refer this dispute to this Commission.
The ld. Advocate of the op. has submitted that after verifying all the terms and conditions of the agreement and by giving his consent the complainant has agreed to abide by the same. The op.party has always acted in accordance with the terms and conditions of the agreement. The opposite party claimed different charges in accordance with the terms and condition of the agreement. He has also submits that the quires raised by the complainant were duly replied by the op.on different dates.
On perusal of record and from submission made by the ld. Advocates , it transpires that as per the development Agreement dated18.01.2008 the agreed consideration of the said property was fixed as Rs. 60,10,090/-which was duly paid by the complainant. In spite of that the opposite party did not deliver the possession of the said flat even after expiry of the stipulated period of three years. It was agreed between the parties that a “notice of possession” will be given to the complainant and within 30 days the actual possession will be delivered but the possession was not delivered accordingly.
It is pertinent to mention that the parties are bound by the agreement. The Hon’ble Supreme Court has already opined in a case between Bharati Knitting Company – vs. – DHL Worldwide Express Courier Division Of Airfreight Ltd. that ,’’ where there is a specific term in the contract, the parties are bound by the term in the contract”
It appears from the scrutiny of the record that clause 10.2 of the Apartment Allotment Agreement relates to procedure for taking possession where it is mentioned that ,” The company shall offer in writing the possession of the said apartment to the apartment allottee according to the terms of this Agreement ( the Notice of Possession) to be taken over 30 days from the date of issue of such notice and the Company shall give possession of the said Apartment to the Apartment Allotte provided the Apartment Allotte is not in default of any of the terms and conditions of this agreement and has complied with all provisions, formalities, documentation etc as may be prescribed by the Company in this regard.
The Apartment Allotte shall be liable to pay the maintenance Charge on and from the date on which actual possession is taken or, on the expiry of thirty days from the date of issuance of the Notice of possession, whichever is earlier”.
In Clause 11.1, 11.2 and 11.3 of the Apartment allotment agreement “force Majeure” conditions were stated. But the op. party did not mention same as a reason for non delivery of possession within the stipulated period of time.
From the clause no. 11.4 of the Agreement it also appears that if there is a failure to deliver possession and the allotte is not found defaulter , the compensation of Rs. 5/- per sq. ft. of the suprer built up area of the said apartment per month for the period of such delay beyond three years or such extended periods is permitted under the agreement and the adjustment of such compensation shall be done only at the time conveyancing the said apartment to the apartment allottee first name in this agreement and not earlier.
It also appears from the record that the op. has informed to the complainant about increase in area due to erection of Power station in the said complex and for which 100.869 sq.ft. area of his apartment was increased. But from careful scrutiny of the Agreement of clause no. 9.2 it is clear that in case of bringing such huge alteration/modification consent of the allottee is necessary. But in this case the complainant was not even informed .Which is contrary to the clause and can be considered as a violation of the clause no.9.2 of the agreement.
It appears from the record that, on 01.06 2014 Revised Final Statements of account was issued Where form it appears that the complainant has already paid charges for cost of increased area from1722 sq. ft. to 1845 sq. ft. , cost for club charges, Prorata charges for arranging supply of Electrical energy and charges for delayed interest .It also appears that as per that letter complainant has to pay Rs/- 51,709.79 under the heading of other costs including Govt. charges @ Rs. 157.51 per sq.ft.,- Rs 6,391/- as service Tax and Rs 5,53,425/- as stamp duty & registration charges .It also appears that the complainant has already made payment of the entire amount of basic sale price , floor rise charges and cost of parking amounting Rs.6,010,090.00 paisa.
It also appears that through another letter dated 24th July, 2014 the op. has demanded payment of Rs. 58,100.79/- , Rs. 553,425/ as stamp duty and registration charges and Rs.92,250/- as IBMS. It transpires from that letter that the said mentioned Principal amount has already paid by the complainant.
From the scrutiny of clause no.13 and 34 of the agreement regarding conveyance of the apartment Agreement and payment of stamp duty and other charges it appears that the company shall execute the Deed of Conveyance only after receiving full payment of the total price including IBMS, payment of registration charges ,stamp duties etc.
From the above all discussion it clearly appears that inspite of expiry of the stipulated period of three years the op. party did not hand over or did not inform about the completion certificate of the said apartment on or before issuing revised final statement of account but demanded maintenance charge .As per clause 14.1 the apartment allottee shal be liable to pay the maintenance charges on and from the date on which the actual possession of the said apartment has been taken or on the expiry of thirty (30) days from the date of issuance of the notice of possession . whichever is earlier. Moreover, the op. has failed to show any “force majeure” condition. It is pertinent to mention that time is the essence and the consumer has deposited his heard earn money for getting shelter and the enormous delay of prolonged period of time creates immense harassment and mental agony. Furthermore, it is obvious that question of registry will arise after delivery of possession and without issuing completion certificate question of execution will not arise specially, where the registration charges will be borne by the complainant and without delivery of possession question of payment of registration charges will also not arise. Such instance of demanding Registry charge, maintenance charges long before delivery of possession can be considered as an example of unfair trade practice. Moreover, when the opposite party has issued another demand letter on 24th July, 2014 asking for payment of Rs. 92,250 as IBMS and ors.,the statement dated 1st June ,2014 cannot be considered as Final Statement of account.
Considering the above facts and circumstances of the case and having heard the ld. advocates it become quite clear that the complainant is a consumer u/s 2(1)(d) of the C.P. Act in a case related to housing construction and the op. is liable for deficiency in service u/s 2(1)(g) and 2(1)(o) of the Act.
Hence, the complaint case no.138/16 is allowed on contest with the following directions:
The opposite party shall handover the possession of the subject property as per Apartment Allotment Agreement dated 18.01.2008 in favour of the complainant within 30 days from the date of receipt of Rs. 92,250/-as Interest Bearing Maintenance Security.
As per agreement the opposite party DLF Company shall pay to the complainant a compensation of @ Rs.5/- per sq.ft from 18.01.2011 till the day before obtaining completion certificate and the amount must be paid to the complainant within 30 days from date. In default the amount shall carry interest @ 9% from date till its realization.
The op. is further directed to pay RS. 10,000/- as litigation charge.
The Registrar of the Commission is directed to send a copy of this order to the parties for information and compliance.
