Chandigarh

StateCommission

CC/166/2017

Kulwinder Kaur - Complainant(s)

Versus

Omaxe Chandigarh Extension Developers Private Limited - Opp.Party(s)

Arora Vishwas Kumar, Adv.

12 Oct 2017

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	166 of 2017
Date of Institution	:	21.02.2017
Date of Decision	:	12-Oct-17

 

1. Kulwinder Kaur wife of Lt.Col. Hardev Singh Hundal, resident of House No.700, New Bank Wali Gali, Rayya District Amritsar, Punjab.
2. Lt. Col. Hardev Singh Hundal son of S.Shamir Singh Hundal, resident of House No.700, New Bank Wali Gali, Rayya District Amritsar, Punjab.

……Complainants

V e r s u s

Omaxe Chandigarh Extension Developers Private Limited, having its Office at 143-144, First Floor, Sector 8-C, Madhya Marg, Chandigarh, through its Regional Manager.

(Secondary Address:- Corporate Office at 10, L.S.C. Kalkaji, New Delhi-110019 through its Managing Director).

              .... Opposite Party

Complaint under Section 17 of the Consumer Protection Act, 1986.

BEFORE:         MR. DEV RAJ, PRESIDING MEMBER.

                        MRS. PADMA PANDEY, MEMBER

 

Argued by:       Sh.Arora Vishwas Kumar, Advocate for the       complainants.

      Sh.Munish Gupta, Advocate for the opposite    party.

 

PER PADMA PANDEY, MEMBER

                The facts in brief are that the complainants, for their residential purpose, purchased an independent floor bearing no.466X/Ground Floor, measuring 1425 square feet, for basic sale price of Rs.40,30,500.98 ps., plus other charges in a project namely “Ambrosia Independent Floor Chandigarh”, at Mullanpur, Punjab, floated by the opposite party. It is stated that, at the time of booking of the said unit, it was promised by sales representatives of the opposite party that possession of the built-up unit, will be delivered within a period of 24 months, from the date of booking thereof, failing which, the Company will pay, Rs.10/- per square feet, per month, for the period of delay, towards penalty/compensation. It was further stated that, thereafter, draw of lots were held and the complainants were provisionally allotted the said unit, vide letter dated 23.11.2012 Annexure C-3. The said unit was corner located. It was further stated that, since the opposite party had promised that possession of the unit, in question, would be delivered, within a period of 24 months, which was not done, as such, consumer complaint bearing no.137 of 2015, was earlier filed by the complainants, before the District Forum-I, Chandigarh, which was allowed, vide order dated 18.11.2015. However, feeling aggrieved of the order passed by the Forum, the opposite party filed appeal bearing no.356 of 2015 before this Commission on 30.12.2015, wherein, the matter was amicably settled between the parties and the said appeal was disposed of, vide order dated 10.02.2016. By that time, Buyer’s Agreement had not been sent by the opposite party, to the complainants for signatures. It was further stated that, in March, 2016, the complainants applied for home loan, from the HDFC Bank, Amritsar, which was approved on 04.03.2016. However, to release loan amount, certain documents were to be provided to the said Bank, as a result whereof, the complainants requested the opposite party to provide them copy of allotment letter/Agreement duly signed by them; permission to mortgage letter; builder declaration; NOC from Vijaya Bank; tripartite agreement etc., so that the same could be forwarded to the HDFC Bank. It was further stated that tripartite agreement dated 17.03.2016 Annexure C-7 colly., duly signed by the said Bank and the complainants was forwarded to the opposite party. It was further stated that the opposite party vide letter dated 05.04.2016, sent two copies of allotment letter/agreement, for signatures of the complainants. The said documents were to be sent back to the opposite party after signatures, which was done by the complainants vide courier dated 08.04.2016. It was further stated that, thereafter, the complainants made number of requests to the opposite party to send the documents, referred to above, so that loan amount could be disbursed by the Bank concerned, but to no avail. It was further stated that, in order to harass the complainants, the opposite party returned the allotment letter/agreement (already sent by them earlier), after changing its annexures. It was further stated that after going through the said annexures, it was found that Preferential Location Charges (PLC) for the said unit, had been illegally and arbitrarily levied by the opposite party therein, for the first time. It was further stated that the complainants requested the opposite party to withdraw the said illegal demand made towards PLC of the said unit, but to no avail. Number of requests made in the matter, did not yield any result. It was further stated that, thereafter, the opposite party gave a threat, that, in case, the said fresh allotment/letter alongwith annexures attached therewith, are not signed by the complainants, allotment of the unit, in question, would be cancelled, after applying forfeiture clause. Left with no alternative, the complainants signed the said documents, yet, with the remarks “signed under protest, we reserve our right to seek refund of PLC”. The said documents were again sent to the opposite party alongwith covering letter 25.07.2016. It was further stated that, the opposite party, vide letter dated 28.09.2016, informed the complainants, to remove the said remarks, for the documents aforesaid. It was made clear to the complainants that allotment letter/agreement will be got executed only after removing the said remarks, from the documents concerned. The said letter was duly replied by the complainants. It was further stated that, thereafter, number of written requests were made to the opposite party, to withdraw the said illegal demand of PLC and also to get the allotment letter/agreement executed but to no avail. On account of non-supplying of copy of allotment letter/agreement alongwith other documents, referred to above, the complainants were not able to get disbursed the loan amount from the Bank concerned. However, on the other hand, the opposite party started levying delayed payment interest, on the outstanding amount. It was further stated that the complainants again requested the opposite party to supply the said documents, so that they are able to get disbursed the loan amount, from the bank concerned and could make payment towards remaining price of the said unit, but to no avail. It was further stated that even service tax has been illegally charged by the opposite party. It was further stated that, as on today, neither executed copy of allotment letter/agreement has been sent to the complainants alongwith other documents, referred to above; nor actual physical possession of the unit has been delivered; nor penalty @Rs.10/- per square feet of the area of unit, per month, for the period of delay has been paid; nor the illegal demand of PLC, referred to above, has been withdrawn, nor service tax has been refunded by the opposite party. Hence this complaint.  

2.         Reply to the complaint was filed by the opposite party, raising many preliminary objections like as per Clause 30 of the application form dated 12.12.2011, this Commission has no jurisdiction, to entertain and decide dispute between the parties, because as per above said Clause, the matter needs to be referred to an arbitrator for adjudication. This plea was also taken by the opposite party, by way of moving separate application dated 25.05.2017, which was disposed of, by this Commission, vide order dated 29.05.2017, holding that applicability of the arbitration process, will be seen at the time of final arguments, in this complaint, which had been listed for 30.06.2016. It was stated that the complainants did not fall within the definition of “consumer” as defined under Section 2(1)(d) of the Act, they being investors. Pecuniary and territorial jurisdiction of this Commission was also challenged.
3.         Purchase of flat by the complainants, in the manner, referred to above, was admitted. There is no dispute qua total sale consideration of the unit. It was stated that, since the complainants opted for construction linked payment plan, and also no specific time period was mentioned in the application form, as such, time was not the essence of contract. It was further stated that, however, the order passed by this Commission, in the Appeal, referred to above, with regard to making payment of compensation, for non-start of construction for about 18 months, from the date of booking of the unit, in question, has been complied with, by the opposite party. It was further stated that it was only on account of clerical mistake on the part of the opposite party, that, in the first instance, preferential location charges, could not be mentioned in the allotment letter/agreement alongwith annexures, sent to the complainants, for signatures. However, when the said mistake came into light, fresh allotment letter/agreement, alongwith annexures, incorporating preferential location charges, were sent to the complainants, for signatures but they failed to do so, in a required manner, and on the other hand, signed the same, under protest, which was not accepted by the opposite party. Despite making number of requests, to the complainants, to remove the remarks relating to “únder protest”, they failed to do so.  It was further stated that, Clause 8 of the application form, clearly says that even if the allotment was made of a non-PLC unit and the same was subsequently made a PLC unit, the allottee concerned has to make differential payable amount towards PLC. It was further stated that the parties are bound by terms and conditions of the application form. It was further stated that the complainants were telephonically informed by the opposite party, that they could be relocated to a non-PLC unit, of same specification, in the same project, but they did not respond. It was further stated that the opposite party had obtained all necessary sanctions/approvals, from the Competent Authorities and the unit is ready for possession, subject to making payment by the complainants, as demanded from them, alongwith delayed payment interest. Even completion certificate in respect of the project, in question, has been obtained by the opposite party. Prayer was made to dismiss the complaint.
4.         The parties led evidence in support of their case.
5.         The contesting parties raised arguments, in tune of the facts narrated above.
6.         We have heard the contesting parties, and have gone through the evidence and record of the case, very carefully.
7.         First, we will deal with the objection, raised by the opposite party, that in the face of existence of provision to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, in the application form, this Commission has no jurisdiction to entertain the consumer complaint.

                We are not going to agree with the objection raised. In a case titled as ‘Sarbjit Singh Vs. Puma Realtors Private Limited’, IV (2016) CPJ 126, this Commission has elaborately dealt with this question, while relying upon ratio of judgments of the Hon’ble Supreme Court, titled as Fair Air Engg. Pvt. Ltd. & another Vs. N. K. Modi (1996) 6  SCC 385, C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC 233, Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, (Civil Appeal No.20923 of 2013), Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (2004) 1 SCC 305 and United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers, I (2004) CPJ 22 (SC),  and LIC of India and another Vs. Hira Lal, IV (2011) CPJ 4 (SC), and held that even in the face of existence of arbitration clause in an Agreement/application form, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has jurisdiction to entertain the consumer complaint. Furthermore, under similar circumstances, the National Commission, in a case titled as Lt. Col. Anil Raj & anr. Vs. M/s. Unitech Limited, and another, Consumer Case No.346 of 2013, decided on 02.05.2016, held as under:-

“In so far as the question of a remedy under the Act being barred because of the existence of Arbitration Agreement between the parties, the issue is no longer res-integra.  In a catena of decisions of the Hon’ble Supreme Court, it has been held that even if there exists an arbitration clause in the agreement and a Complaint is filed by the consumer, in relation to certain deficiency of service, then the existence of an arbitration clause will not be a bar for the entertainment of the Complaint by a Consumer Fora, constituted under the Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force. The reasoning and ratio of these decisions, particularly in  Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha  (Dead) Through LRs. & Others  - (2004) 1 SCC 305; still holds the field, notwithstanding the recent amendments in the Arbitration and Conciliation Act, 1986.  [Also see: Skypak Couriers Ltd. Vs. Tata Chemicals Ltd. - (2000) 5 SCC 294 and National Seeds Corporation Limited Vs. M. Madhusudhan Reddy & Anr. - (2012) 2 SCC 506.] It has thus, been authoritatively held that the protection provided to the Consumers under the Act is in addition to the remedies available under any other Statute, including the consentient arbitration under the Arbitration and Conciliation Act, 1986.”

Furthermore, the National Commission in a case titled Omaxe Limited Vs. Dinesh Lal Tarachandani, First Appeal No.1433 of 2016, decided on 24.11.2016, while dismissing the appeal filed by the builder (Omaxe), held as under:-

“We are unable to persuade ourselves to agree with the Learned Counsel.  In our opinion, the decision of the State Commission being based on the authoritative pronouncements by the Hon’ble Supreme Court and also on the decision dated 02.05.2016, rendered by this Bench in the case of Lt. Col. Anil Raj & Ors. Vs. M/s Unitech Limited & Ors. in CC No. 346/2013, in which we have held that notwithstanding the amendments in the Arbitration Act, the reasoning and ratio of the decision of the Hon’ble Supreme Court, in the case of Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha (Dead) Through LRs. & Ors.  (Supra) still holds good, no fault can be found with the view taken by the State Commission. 

Consequently, the Appeal fails and is dismissed accordingly.”

Recently, the larger Bench of the National Commission in a case titled as Aftab Singh  Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, vide order dated 13.07.2017, has held that an Arbitration Clause in the Agreements or application forms, between the complainants and the Builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act.

                In view of the above, objection raised by the opposite party in this regard, being devoid of merit is rejected.

8.         The next question that falls for consideration, is, as to whether, the complainants are investors and have purchased the unit in dispute, for selling the same, to earn profits and not for personal use, as alleged by the opposite party. In the first instance, it may be stated here that, it has been specifically stated by the complainants, in the complaint, supported by their affidavits, that they have purchased the unit, in question, for their residential purpose. Not only as above, still the complainants are seeking possession of the unit, in question, by way of filing this complaint. At the same time, there is nothing on record to prove, that the complainants are property dealers, and deal in the sale and purchase of property, on regular basis, in the open market and, as such, the unit, in question, was purchased by them, by way of investment, with a view to resell the same, as and when, there was escalation in the prices thereof. Since, the opposite party has leveled allegations against the complainants, as such, the onus lays upon it, to prove it, which it failed to do so. Thus, in the absence of any cogent evidence, in support of the objections raised by the opposite party, mere bald assertion i.e. simply saying that the complainants being investors, did not fall within the definition of a ‘consumer’, cannot be taken into consideration. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta,  2016 (2) CPJ 316. Not only this, recently in a case titled as  Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, under similar circumstances, the National Commission negated the plea taken by the builder, while holding as under:-

“In the case of the purchase of the houses which a builder undertakes to construct for the buyer, the purchase can be said to be for a commercial purpose where it is shown, by producing evidence, that the buyer is engaged in the business of a buying and selling of houses and or plots as a trading activity, with a view to make profits by sale of such houses or plots.  A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots.  In a given case, separate houses may be purchased by a person for the individual use of his family members.  A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city.  A person may buy two or three houses if the requirement of his family cannot be met in one house. 

 

 

                The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. The  complainants, thus, fall within the definition of a ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by the opposite party, in its written reply, therefore, being devoid of merit, is rejected. 

9.         The next question that falls for consideration, is, as to whether, this Commission has pecuniary jurisdiction, to entertain and adjudicate this complaint or not. 

                It may be stated here, that the complainants have sought possession of the unit, in question, total price whereof is Rs.52,51,650/- (excluding PLC) (as is evident from the document Annexure-A dated 29.08.2017); compensation @Rs.10/- per square feet of the area of the unit, for the period of delay in delivery of possession; refund of service tax amount to the tune of Rs.96,964.93ps.; compensation to the tune of Rs.3 lacs, for mental agony, physical harassment, financial loss, deficiency in providing service and unfair trade practice; and cost of litigation to the tune of Rs.33,000/-, aggregate value whereof fell above Rs.50 lacs but below Rs.1 crore. In no way, the aggregate value of the relief claimed, exceeds Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint. Such an objection taken by the opposite party, that this Commission lacks pecuniary Jurisdiction, being devoid of merit, must fail and the same stands rejected.

10.         The next question that falls for consideration, is, as to whether, this Commission has territorial jurisdiction to entertain and decide the complaint or not.

                According to Section 17 of the Act, a consumer complaint can be filed, by the complainants, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to them. In the instant case, it is not disputed that the payments in respect of the unit, in question, was received at Corporate Office of the opposite party at Chandigarh. In Clause 59 (e) of the Allotment Letter/Agreement (at page 66 of the file), it is evident that the communication address of the Company was mentioned as SCO No.139-140, 1^st Floor, Madhya Marg, Sector 8-C, Chandigarh. Furthermore, it is also evident that almost all the letters, written by the complainants, with regard to withdrawal of illegal demands towards PLC as also for supplying of certain documents, referred to above, for disbursement of loan amount by the Bank concerned, were addressed to Corporate Office of opposite party at Chandigarh. Not only as above, it is also evident that letter dated 29.11.2016 (at page 89 of the file), was sent to the complainants, by the opposite party, from its Chandigarh office, as the same bears its round stamp. Since, as per the documents, referred to above, a part of cause of action arose to the complainants, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint.  

                It was also contended by Counsel for the opposite party, that since as per Clause 30 of the application form, the Courts at Punjab/Delhi, shall have Jurisdiction, to entertain and adjudicate the complaint, and, as such, the Jurisdiction of this Commission was barred. It may be stated here that all the provisions of the Code of Civil Procedure are not applicable, except those, mentioned in Section 13 (4) of the Act, to the proceedings, in a Consumer Complaint, filed under the Act. For determining the territorial jurisdiction, to entertain and decide the complaint, this Commission is bound by the provisions of Section 17 of the Act. In Associated Road Carriers Ltd., Vs. Kamlender Kashyap & Ors., I (2008) CPJ 404 (NC), the principle of law, laid down, by the National Commission, was to the effect, that a clause of Jurisdiction, by way of an agreement, between the Parties, could not be made applicable, to the Consumer Complaints, filed before the Consumer Foras. It was further held, in the said case, that there is a difference between Sections 11/17 of the Act, and the provisions of Sections 15 to 20 of the Civil Procedure Code, regarding the place of jurisdiction. In the instant case, as held above, a part of cause of action arose to the complainant, within the territorial Jurisdiction of this Commission, at Chandigarh. In Ethiopian Airlines Vs Ganesh Narain Saboo, IV (2011) CPJ 43 (SC)= VII (2011) SLT 371, the principle of law, laid down, was that the restriction of Jurisdiction to a particular Court, need not be given any importance in the circumstances of the case.

                In Cosmos Infra Engineering India Ltd. Vs Sameer Saksena & another I (2013) CPJ 31 (NC) and Radiant Infosystem Pvt. Ltd. & Others Vs D.Adhilakshmi & Anr I (2013) CPJ 169 (NC) the agreements were executed, between the parties, incorporating therein, a condition, excluding the Jurisdiction of any other Court/Forum, in case of dispute, arising under the same, and limiting the Jurisdiction to the Courts/Forums at Delhi and Hyderabad. The National Commission, in the aforesaid cases, held that such a condition, incorporated in the agreements, executed between the parties, excluding the Jurisdiction of a particular Court/Forum, and limiting the Jurisdiction to a particular Court/Forum, could not be given any importance, and the complaint could be filed, at a place, where a part of cause of action arose, according to Sections 11/17 of the Act. The principle of law, laid down, in the aforesaid cases, is fully applicable to facts of the instant case. It may also be stated here, that even if, it is assumed for the sake of arguments, that the complainants had agreed to the terms and conditions of the application form, limiting the Jurisdiction to the Courts, referred to above, the same could not exclude the Jurisdiction of this Commission, at Chandigarh, where a part of cause of action accrued to them, to file the complaint. The submission of Counsel for the opposite party, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

11.         The next question, which falls for consideration, is, as to whether, the opposite party is entitled to claim an amount of Rs.3,51,066/-, towards preferential location charges or not. It may be stated here that booking of the unit, in question, was made on 12.12.2011. Thereafter, draw of lots were held and vide provisional allotment letter dated 23.11.2012 Annexure C-3, the complainants were allotted the unit, in question. Thereafter, admittedly, when the opposite party failed to start construction of the unit, in question, for the period of next 18 months, the complainants had filed consumer complaint before the Forum, which was allowed in their favour and was ultimately disposed of, in an appeal filed by the opposite party/appellant, before this Commission, vide order dated 10.02.2016, in the manner, referred to above. Admittedly, the opposite party had to pay compensation to the complainants, for the said delay of 18 months, in not starting the construction of units, at the site. It was only thereafter, that the opposite party sent a copy of the allotment letter/agreement to the complainants, for their signatures. Alongwith the said allotment letter/agreement, Annexure B (PART-II) showing details of the unit, including its head-wise entire cost, was also sent. In the said document, against the Column Preferential Location Charges (PLC) it has been shown as 0.00 (zero). Furthermore, in Annexure B PART III, Payment Plan of the Unit, no reference has been made with regard to payment of PLC. After signing the said documents i.e. allotment letter/agreement, alongwith Annexures B aforesaid, the same were sent to the opposite party vide courier receipt Annexure C-10 dated 08.04.2016, which is not disputed by the opposite party. It is also an admitted fact that after sending the said documents, when the opposite party did not take any action, for supplying certain documents, required for disbursement of the loan, in question, the complainants sent letter dated 05.05.2016 Annexure C-11 to the opposite party, requesting them to do so. However, it is also an admitted case that, thereafter, instead of sending back the same documents, the opposite party sent fresh allotment letter/agreement, alongwith fresh Annexures, wherein, for the first time, PLC to the tune of Rs.3,11,500/- was demanded by it, from the complainants. It was only thereafter, that a lot of correspondence took place between the parties, with regard to levying of PLC, but the same remained unsolved.

                Sequence of events, referred to above, clearly reveals that from 12.12.2011 i.e. the date of booking till May 2016 i.e. for around more than 5 years, the opposite party did not whisper a word, by way of any mode, to say that PLC was to be levied on the unit, in question, but the same could not be done on account of some clerical mistake, in the documents concerned. However, on the other hand, it appears that, it was only after the appeal, referred to above, was disposed of and the opposite party had to pay compensation to the complainants, that it (opposite party) raised this new issue of PLC. Had the said PLC been actually leviable but the same went unnoticed at the time of draw of lots, the opposite party could have raised the said issue at the time of issuance of provisional allotment letter or at the time of sending allotment letter/agreement for the first time or at the time of raising demands during the intervening period or before the District Forum, in consumer complaint, referred to above or  before this Commission, in the appeal, referred to above but it did not do so.  As such, under above circumstances, an adverse inference could very well be drawn against the opposite party that the said demand of PLC was raised by the opposite party, for the first time in May 2016, only with a view to harass the complainants. This stand of the opposite party is nothing but an afterthought, which is not sustainable in the eyes of law.

                No doubt, to strengthen its stand, the opposite party has relied upon Clause 8 of the terms and conditions of the application form. We have gone through the said clause very carefully and are of the considered opinion that, in no way, the said clause is of any help to the opposite party, as far as its stand is concerned. The said Clause clearly says that if a unit, which is non-preferentially located becomes preferentially located, on account of change in the layout/building plan, the allottee concerned will be liable to pay the preferential location charges, as and when demanded by the Company. Interestingly, it is not the case of the opposite party that location of the unit, in question, was changed, on account of change in the layout/building plan, as a result whereof, the non-PLC unit came into the bracket of PLC. Had this been the case of the opposite party, the matter would have been different. Under above circumstances, it is held that the opposite party cannot charge any amount towards alleged PLC, as far as the present unit is concerned. Plea taken by the opposite party, in this regard, being devoid of merit, must fail and the same stands rejected.  

12.         The next question, that falls for consideration, is, as to within which period, possession of the unit, in question, was to be delivered to the complainants. It is an admitted fact that allotment letter/agreement, was sent to the complainants, by the opposite party on 05.04.2016 for their signatures. The complainants after going through the terms and conditions contained therein, accepted the same, by way of signing it. The said allotment letter/agreement alongwith annexures, was sent back to the opposite party, vide courier dated 08.04.2016. At that relevant time, since the complainants had already obtained decree in their hands, in the appeal, referred to above, in lieu of delay in start of construction and they were adequately compensated for the said delay, as such, they did not raise any protest, while signing the said allotment letter/agreement, which was received by them on 05.04.2016 and sent back on 08.04.2016 to the opposite party. As such, under above circumstances, the period of delivery of possession will be culled out from the relevant Clause contained in the said allotment letter/agreement i.e. Clause 7 (a) which says that possession of the unit, will be delivered within a period of 15 months from the date of signing of the same (allotment letter). Since, in the present case, allotment letter/agreement was signed on 05.04.2016, as such, the date of possession comes to 04.07.2017. No doubt, the opposite party also made itself entitled to six months grace period, beyond 04.07.2017, however, in the instant case, no justification was given by it (opposite party), for grant of such grace period. To avail the said grace period, the opposite party was required to place on record cogent evidence, to convince this Commission, which it failed to do so. Under above circumstances, it is held that possession of the unit, in question, was to be delivered to the complainants, by the opposite party, within a period of 15 months, from 08.04.2016 i.e. latest by 04.07.2017. In view of this, it is also held that time was unequivocally made essence of the contract.
13.         It is pertinent to mention here that, admittedly, temporary possession of the unit, in question, has been offered to the complainants, vide letter dated 29.08.2017 during pendency of the complaint. From reading of contents of the said letter, it transpires that still some finishing and fit out works is pending to be carried out in the said unit. The unit, in question, was booked in the year 2012, and now it is October 2017. Still the opposite party is not ready with delivery of actually physical possession of the unit, in question, which act certainly amounts to deficiency in providing service, on its part and for that, they are liable to compensate the complainants, by making payment @Rs.10/- per square feet of the area of the unit, per month, till the date, when actual physical possession of the unit, in question, is delivered to them. 

                Besides as above, the complainants are also held entitled for compensation, to the tune of Rs.1 lac, towards mental agony and physical harassment.  

14.          The next question that falls for consideration, is, as to what amount is required to be paid by the complainants, to the opposite party, towards remaining price of the said unit. It may be stated here that as per statement of account Annexure -A dated 29.08.2017, the opposite party has demanded an amount of Rs.21,01,000.34ps. under various heads. The said amount also included Rs.3,51,066/- towards PLC, which demand has been held to be illegal, by this Commission, in preceding para of this order. Out of the said demanded amount of Rs.21,01,000.34ps., the complainants have challenged only an amount of Rs.3,51,066/-  demanded by the opposite party towards PLC. Under above circumstances, it is held that the opposite party is entitled to Rs.17,49,934/- (Rs.21,01,000.34ps., minus (-) Rs.3,51,066/-), towards remaining sale consideration of the unit, in question.  However, it is made clear that if the opposite party has levied any delayed payment interest, on the amount of Rs.3,51,066/-, it (delayed payment interest) be deducted out of Rs.17,49,934/-, payable by the complainants.

                At the same time,  it is held that the complainants cannot claim total waiver of delayed payment interest, levied by the opposite party. When the demands were made by the opposite party, the complainants should have made payment of the same, after retaining/deducting the amount of PLC, referred to above, and could have challenged the same, at a later stage. However, instead of doing that, they withheld the entire remaining amount, demanded by the opposite party, which is not sustainable in the eyes of law. As such, it is held that the complainants are liable to pay an amount of Rs.17,49,934/- minus (-) delayed payment interest, if any, levied by the opposite party on the amount of PLC of Rs.3,51,066/-.   

15.         No other point, was urged, by the contesting parties.
16.         For the reasons recorded above, the complaint is partly accepted, with costs. The opposite party is directed as under:-
    1. To hand over actual physical possession of the unit, in question, to the complainants, within a period of 04 months, from the date of receipt of certified copy of this order, complete in all respects, after obtaining necessary occupation and completion certificates, from the competent authorities, on receipt of legally due amount of Rs.17,49,934/- minus (-) delayed payment interest, if any, levied by the opposite party on the amount of PLC to the tune of Rs.3,51,066/-, from them (complainants).
    2. To execute and get registered the sale deed, in respect of the unit, in question, in favour of the complainants, within two months, from the date of handing over possession, as indicated in Clause (i) above, on payment of registration and stamp duty charges, by them to the Registering Authorities.
    3. To supply all the documents, required by the complainants for disbursement of loan, as referred to above.
    4. To pay compensation @Rs.10/- per square feet of the area of the unit, per month, w.e.f. 04.07.2017 till 30.09.2017, within a period of one month, from the date of receipt of a certified copy of this order, failing which, the entire amount accumulated for the said period shall carry penal interest @12% p.a. from the date of default, till payment is made.
    5. To pay compensation @Rs.10/- per square feet of the area of the unit, per month, w.e.f. 01.10.2017, onwards (per month), till actual delivery of actual physical possession of the unit, by the 10^th of the following month, failing which, the same shall also carry penal interest @12% p.a., from the date of default, till payment is made.
    6. To pay compensation, in the sum of Rs.1 lac, on account of mental agony, physical harassment, caused to the complainants, deficiency in providing service and adopting unfair trade practice, within two months from the date of receipt of a certified copy of this order, failing which, the same shall carry interest @12% p.a., from the date of filing this complaint till realization.
    7. To pay cost of litigation, to the tune of Rs.33,000/-  to the complainants, within two months from the date of receipt of a certified copy of this order, failing which, the same shall also carry interest @12% p.a., from the date of filing this complaint till realization.
17.         Certified Copies of this order be sent to the parties, free of charge.
18.         The file be consigned to Record Room, after completion.

Pronounced.

12-Oct-17

Sd/-

 (DEV RAJ)

PRESIDING MEMBER

 

 

Sd/-

(PADMA PANDEY)

        MEMBER

 Rg.