Chandigarh

StateCommission

CC/166/2015

Ravinder Singh & anr. - Complainant(s)

Versus

Premium Acres Infratech Pvt. ltd. - Opp.Party(s)

Gaurav Bhardwaj

26 Oct 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

                UNION TERRITORY, CHANDIGARH

 

Consumer Complaint No.	166 of 2015
Date of Institution	11.08.2015
Date of Decision	26.10.2015

 

1.  Ravinder Singh S/o Sh.B.R.Singh, resident of H.No.944, Ground Floor, Sector 43-A, Chandigarh.

 

2.  Tripta Singh W/o Ravinder Singh S/o Sh.B.R.Singh, resident of H.No.944, Ground Floor, Sector 43-A, Chandigarh.

 

….…Complainants

 

V E R S U S

 

1]     Premium Acres Infratech (P) Ltd., (Earlier at SCO No.56-57, 3^rd floor, Sector 17-D, Chandigarh) now at SCO No.139-141, First Floor, Sector 17-C, Opposite Mehfil Restaurant, Chandigarh through its Managing Director Mr.Parminder Singh Sehgal.

2]     Premium Acres Infratech (P) Ltd., Registered office, 17/6, Industrial Area, Gali No.10, Anand Prabat New Rohtak Road, New Delhi through its Managing Director/Authorised Signatory.

3]     Premium Acres Infratech (P) Ltd., through its Director/Authorised Signatory Sanjay Jain S/o Sh.M.R.Jain, r/o 2235, Sector 21-C, Chandigarh.

4]     LIC Housing Finance Ltd., SCO No.1112-1113, 2^nd Floor, Sector 22-B, Chandigarh, through its Manager.

 

.….. Opposite Parties

 

BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                SH.DEV RAJ, MEMBER

                SMT.PADMA PANDEY, MEMBER      

                                                                       

Argued by:   

Sh.Gaurav Bhardwaj, Advocate for the complainants.

Sh.Parminder Singh, Advocate for Opposite Parties No.1 & 2.

Sh.Sumit Batra, Advocate for Opposite Party No.4.

Opposite Party No.3 already exparte.

 

PER PADMA PANDEY, MEMBER

            In brief, the facts of the case are that the complainants were willing to own a residential villa/house near Chandigarh and, therefore, they applied for a built up villa of 1700 sq. ft. in the project ‘Courtyard’, TDI City, Sector 110, Mohali with Opposite Parties No.1 and 2 (Company) by paying the booking amount of Rs.1,00,000/- on 01.04.2010 and Rs.1,30,400/- on 01.03.2012 vide receipts (Annexure C-1 and C-2). The complainants further paid an amount of Rs.15,00,000/- vide receipt dated 17.03.2012, Rs.3,59,600/- vide receipt dated 08.09.2012 and Rs.1,25,943/- vide receipt dated 08.09.2012 (Annexure C-3 to C-5) to the Company. Further villa No.140 was allotted to the complainants vide allotment letter dated 02.10.2012 (Annexure C-6). Thereafter, Buyer Agreement was also executed between the parties on 02.10.2012 (Annexure C-7 Colly.), according to which, the total sale consideration was shown as Rs.43,21,400/-. The complainants further paid an amount of Rs.3,13,500/- vide receipt dated 14.10.2012 and Rs.5,00,000/- vide receipt dated 20.03.2013 (Annexure C-8 and C-9) to the Company. The complainants received a letter dated 30.03.2013 from the Company demanding Rs.9,60,010.82 and the said letter was accompanied by a statement of account, vide which, Rs.30,29,443/- was shown as paid by the complainants. It was stated that the complainants also availed a loan facility from Opposite Party No.4 for payment of the balance amount (Annexure C-10 Colly.). It was further stated that the complainants paid the demanded amount to the Company on 30.03.2013 and the same was acknowledged by them vide letter and account statement dated 19.04.2013.                 It was averred that the complainants were informed vide said letter that Rs.2,94,001.81 was due towards them (Annexure C-11 Colly.).

2.             The complainants further received a letter dated 06.08.2013 (Annexure C-12) from the Company, vide which, they were informed that the finishing works have started and they were asked to be ready for taking possession of the villa. The complainants were informed vide letter dated 20.02.2014 that the unit should be ready for possession by 15.03.2014 and a demand of Rs.4,43,898/- was raised. The said letter was accompanied by an account statement. Copies of the letter and account statement are Annexure C-13 and C-14. The complainants had already paid an amount of Rs.42,83,455/- by that date to the Company. Thereafter, the complainants paid an amount of Rs.4,16,512/- to the Company on 15.03.2014 through Opposite Party No.4 and possession of the villa, in question, was duly handed over to them on 26.03.2014 and the keys of the villa were also handed over to them by the representative of the Company. The possession letter and undertaking was got signed from the complainants on 26.03.2014. Copies of the payment history by LICHFL (Opposite Party No.4) and possession letter are Annexure C-15 and C-16.

3.             It was further averred that the complainants used to visit the said villa once in a month and two months and could not shift there as electricity, water and sewerage connection was not provided by the Company. It was pleaded that the complainants alongwith their friends and family members performed havan/pooja in the said villa on 31.01.2015 and informed the Company regarding the greh parvesh, as such, on the next day i.e. 01.02.2015 when they visited for the greh parvesh, they found that the main entrance of the villa was bolted with locks over the existing locks of the complainants. Photograph of the same is Annexure C-17. Then, the complainants rushed to the site office and reported the matter to the caretakers, who informed them that they bolted the lock on the directions of their Director and threatened them not to break /open the said lock. Thereafter, some interse dispute between the Directors of the Company erupted and the complainants were not allowed to enter into their own villa, for which, they already made the entire payment of Rs.46,99,967/- to the Company. The complainants visited the site office a number of times but of no use.  Due to the aforesaid act and conduct of the Opposite Parties, they were deficient, in rendering service, as also, indulged into unfair trade practice.  When the grievance of the complainants was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the “Act” only), was filed.

4.             Notice was issued to the Opposite Parties but none appeared on behalf of Opposite Party No.3, despite service, and, as such, he was proceeded against exparte, vide order dated 24.09.2015.

5.             Opposite Parties No.1 and 2, in their reply, stated that the documents annexed by the complainants alongwith their complaint (Annexure C-14 and C-16) were forged and they are manipulated to cause loss to the replying Opposite Parties. It was further stated that Annexure R-2 i.e. the updated summary account statement dated 16.09.2015 alongwith the payment receipt chart clearly shows that still an amount to the tune of Rs.32,84,458/- is due towards the complainants. According to Opposite Parties No.1 and 2, the project, in question, is complete and ready for possession, subject to the complete payment, but the complainants, without making the complete payment, wants to grab the property by producing false and fabricated documents and in order to safeguard the property, in question, the replying Opposite Parties lodged a complaint with the police against them (complainants) vide Annexure R-8. It was stated that an earlier employee of the replying Opposite Parties, Mr.Sanjay Jain alongwith others manipulated, fabricated and forged various documents and cheated the replying Opposite Parties and, therefore, they got the FIR No.64 dated 23.02.2015 (Annexure R-4) lodged, in which, the Chandigarh Police had opposed the bail plea by filing reply (Annexure R-5) on the ground that prima facie, complaint filed by the replying Opposite Parties is correct, as fraud and forgery was committed by the accused with others. 

6.             It was pleaded that since a complicated question of fact regarding the complete amount paid are involved, only the civil court has the power to decide the matter.  They further pleaded that since as per Clause 36 of the Buyer Agreement, only the Courts at Delhi, had Jurisdiction to adjudicate any dispute, arising between the parties and, as far as the present unit was concerned, this Commission has got no territorial Jurisdiction, to entertain and decide the instant complaint. It was admitted that Buyer Agreement (Annexure C-7) dated 02.10.2012 was entered into between the replying Opposite Parties and the complainants, but it was straightway denied that the total consideration shown in the said Agreement was only to the tune of Rs.43,21,400/- because their other charges, which are to be recovered like service tax + building cess + PLC (being the corner plot and facing park which costs extra being shown in the site plan) +Club Charges + IFMS + Sewerage +Electricity + Water + Service Tax on services + Delayed Interest Payment + Inflation Holding and Restoration charges, are to be paid before taking possession, as per Annexure R-2. It was denied that Annexure C-14 i.e. account statement, was issued by the replying Opposite Parties because the complete payment was not made by the complainants and secondly the alleged statement was not signed. It was admitted that the replying Opposite Parties received the payments from the complainants, details of which are in Annexure C-15, but it was denied that they were offered possession through Annexure C-16 and keys were also handed over for the physical possession because, first of all, question of possession did not arise, as they failed to make complete payment. It was further pleaded that the complainants under the guidance and instructions of the replying Opposite Parties, old employees, against whom an FIR was lodged, tried to take over the property in the pretext of Grah Parvesh/hawan/puja by pressurizing their staff, which was opposed by them and in order to take proper care of their property, they put another lock on it. It was further averred that the complainants made only a payment of Rs.46,99,967/-, and that too late payments (never in time) but that was not the complete payment and there was still payments pending to the tune of Rs.32,84,458/-, as per Annexure R-2. It was further averred that the replying Opposite Parties are ready to handover the villa, subject to complete payment, as per Annexure R-2. It was further stated that Opposite Parties No.1 and 2 were neither deficient, in rendering service nor indulged into unfair trade practice.

7.             Opposite Party No.4, in its reply, stated that the complainants reached the office of replying Opposite Party for availing the loan facility amounting to Rs.18.00 lacs against the mortgage of property, in question and on their request, the same was duly sanctioned on 29.03.2013. It was pleaded that the complainants did not claim or prayed any relief qua Opposite Party No.4, and prayed for dismissal of the complaint qua the replying Opposite Party.

8.             The complainants, Opposite Parties No.1, 2 and 4 led evidence, in support of their case.

9.             We have heard the Counsel for the complainants, Opposite Parties No.1 and 2 and Opposite Party No.4, and have gone through the evidence and record of the case, carefully. 

10.           Admittedly, the complainants applied to the Company vide application in the year 2010 for the built up villa of 1700 sq. ft. in the project namely ‘The Courtyard’ at ‘TDI City’, Sector 110, Mohali, Punjab and a bare perusal of the allotment letter reveals that the Company allotted unit No.140 in their project vide allotment letter dated 02.10.2012 (Annexure C-6 Colly.). Annexure C-7 is a copy of Buyer Agreement, which was executed between M/s Premium Acres Infratech Private Limited and the complainants on 02.10.2012 at Chandigarh. It is evident from the allotment letter aforesaid that the complainants opted for the Construction Linked Installment Plan (at page 26). The total basic sale price was Rs.41,80,000/- ; Rs.3,50,400/- on account of External Development Charges and Preferential Location Charges shown as ‘0’. By allowing discount of Rs.2,09,000/-, the total price of the villa/unit, in question, came to be Rs.43,21,400/-. The Construction Linked Installment Plan, opted by the complainants, is extracted hereunder:-

 

Basic Sales Price		41,80,000.00
EDC		3,50,400.00
PLC		0
Discount		2,09,000.00
At the time of registration	20% of BSP	8,36,000.00
Within three months of allotment	10% of BSP	4,18,000.00
Within three months of first installment	10% of BSP	4,18,000.00
On commencement of demarcation of plot	10% of BSP	4,18,000.00
On casting of ground floor roof	7.5% of BSP	3,13,500.00
On casting of first floor roof	7.5% of BSP	3,13,500.00
On start of brick work	7.5% of BSP + 25% of EDC	4,01,100.00
On start of internal plastering	7.5% of BSP + 25% of EDC + 50% of PLC	4,01,100.00
On start of flooring	5% of BSP + 25% of EDC + 50% of PLC	2,96,600.00
On start of internal electrification	5% of BSP + 25% of EDC – 50% of Discount	1,92,100.00
On start of internal plumbing	5% of BSP – 50% of Discount	1,04,500.00
On final notice of possession	5% of BSP	2,09,000.00
		43,21,400

 

11.           A perusal of the aforesaid chart shows that total sale consideration of the unit was Rs.43,21,400/- and Opposite Parties No.1 and 2 in para No.15 of their written statement admitted that the complainants paid a total sum of Rs.46,99,967/- i.e. more than the total sale consideration of the unit, in question.

12.           The first question, that falls for consideration, is, as to whether, this Commission has got territorial Jurisdiction to entertain and decide the consumer complaint, or not. The submission of Counsel for Opposite Parties No.1 and 2, that since the parties, as per Clause 36 of the Buyer Agreement, agreed that the Courts at Delhi alone would have Jurisdiction, for adjudication of all disputes arising out or in connection with the same (Agreement), this Commission has got no territorial Jurisdiction, to entertain and decide the complaint, being devoid of merit, is liable to be rejected, for the reasons, to be recorded hereinafter. In the first instance, it may be stated here, that the Consumer Foras are not the Courts. Clause 36 of the Buyer Agreement only confers Jurisdiction, on the Courts at Delhi. Under these circumstances, no help can be drawn, from this Clause, for coming to the conclusion that this Commission at Chandigarh, has no territorial Jurisdiction, to entertain and decide the instant complaint. In Associated Road Carriers Ltd. Vs. Kamlender Kashyap and Ors., I (2008) CPJ 404 (NC), it was held by the Hon’ble National Consumer Disputes Redressal Commission, 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, as the Foras are not the Courts.  It was further held, in the said case, that there is a difference between Section 11 of the Act, which is para materia to Section 17 of the Act and the provisions of Sections 15 to 20 of the Civil Procedure Code, regarding the place of Jurisdiction. Otherwise also, in the instant case, the Buyer Agreement, was executed between the complainants and Opposite Parties No.1 and 2, at Chandigarh, as is evident from page 30 of the file. Not only this, allotment letter dated 02.10.2012 (Annexure C-6 Colly.) issued to the complainants by Opposite Parties No.1 and 2, from their Chandigarh office. Furthermore, the receipts and letters (Annexure C-1 to C-5, C-8 to C-13) were issued to the complainants by Opposite Parties  No.1 and 2, from their Chandigarh Office i.e. SCO No.56-57, 3rd Floor, Sector 17-D, Chandigarh. As such, a part of cause of action, accrued to the complainants, at Chandigarh. Accordingly, this Commission at Chandigarh, in view of the provisions of Section 17 of the Act, has territorial Jurisdiction to entertain and decide the complaint. The submission of Counsel for Opposite Parties No.1 and 2, in this regard, therefore, being devoid of merit, must fail and the same stands rejected.

13.           The next question, which falls for consideration, is, as to whether this Commission can adjudicate upon the present complaint, when there are allegations of fraud and forgery leveled by Opposite Parties No.1 and 2, against earlier employee of the Company i.e. Mr.Sanjay Jain in connivance with the other officials. Bare perusal of the Buyer Agreement reveals that the said Agreement on each page bears the stamp and signatures of authorized signatory of Opposite Parties No.1 and 2. When the Agreement is duly signed by an authorized signatory of Opposite Parties No.1 and 2, they cannot resile from the contents of the same. It is not the case of Opposite Parties No.1 and 2 that they did not receive the amount deposited by the complainants. If the person who was authorized to sign the Agreement committed some fraud with Opposite Parties No.1 and 2, the liability for the same cannot be fastened upon the complainants. Opposite Parties No.1 and 2 can proceed against him/them, as per the provisions of law but the rights of the complainants, being third parties, due to the acts of the earlier employee/employees of the Company, could not be affected. This was an internal affair of the Company vis-à-vis its Director /Authorised Signatory, in connivance with the other officials, who allegedly committed fraud with it (Company). Thus, this objection of Opposite Parties No.1 and 2, being devoid of merit also stands rejected. 

14.           The next question, that falls for consideration, is, as to what amount is required to be paid by the complainants, towards remaining sale consideration and other charges, in respect of the said villa. As per the summary dated 16.09.2015, Annexure R-2, at page 96 of the file, produced by Opposite Parties No.1 and 2, a sum of Rs.32,84,458/-, was demanded from the complainants, under various heads, as under:-

S.No	Heads	Amount to be paid (Rs.)	Amount rcvd. and Adjusted	Amount (Rs.)
1.	Basic sale price	41,80,000/-	34,26,347/-	7,53,653/-
2.	Preferred Location Charges	7,10,600/-		7,10,600/-
3.	External Development Charges	3,50,400/-	1,75,200/-	1,75,200/-
4.	Service Tax + Building Cess	1,92,920/-	1,41,044/-	51,876/-
5.	Less :-Discount	2,09,000/-	2,09,000/-
6.	Club charges	50,000/-		50,000/-
7.	IFMS	1,00,000/-		1,00,000/-
8.	Sewerage	20,000/-		20,000/-
9.	Electricity	50,000/-		50,000/-
10.	Water	40,000/-		40,000/-
11.	Service tax on services	15,400/-		15,400/-
12.	Delayed Interest Payment	19,67,916/-	11,66,376/-	8,01,542/-
13.	Inflations	3,29,621/-		3,29,621/-
14.	Holding	1,80,000/-		1,80,000/-
15.         R	Restoration Charges
16.	Add: Maintenance charges (Nov’14 to March’15) (192 Sqt. Yards x 1.50 x 7) + Service Tax @12.36%	6,566/-		6,566/-
17.	Total Product Cost	79,84,425/-	46,99,967/-
18.	LESS :- Payment Already Received	Rs.46,99,967/-	Rs.46,99,967/-
	Balance Amount Receivable	32,84,458/-	Rs.0.00	Rs.32,84,458/-

 

15.           The question, that falls for consideration, is, as to whether, out of the aforesaid amounts, the inflation charges, to the tune of Rs.3,29,621/-, as also delayed payment interest, to the tune of Rs.8,01,542/- after adjusting Rs.11,66,376/- claimed by Opposite Parties No.1 and 2, vide summary dated 16.09.2015, Annexure R-2,  are legal or not. Firstly coming to the inflation charges, it may be stated here that Clause 11 of the Buyer Agreement, reads as under:-

“The price for the unit stipulated herein is based on wholesale index for all commodities as ruling in. However, during the progress of the work, escalation in cost takes place which will be based on all India wholesale Index for all commodities the effect of such increase as assessed by the Company and intimated to the intending (allottees) shall be payable by him/her over and above  the price. The decision of the Company in this respect shall be final and binding on the intending Allottees(s). The increased incidence may be charged and recovered by the Company from the intending allottee(s) with anyone or more of the installments or separately”.

16.         It is evident, from afore-extracted Clause 11 of the Buyer Agreement, that Opposite Parties No.1 and 2, were entitled to escalation in cost, during the course of construction work, based on All India Wholesale Index for all commodities. Based on this Clause, Opposite Parties No.1 and 2, submitted Annexure R-3 at page 103 i.e. Inflation Working Detail for Copper Villa. The Buyer Agreement was executed on 02.10.2012 and possession of the villa, in question, was to be delivered, as per Clause 9 of the same (Buyer Agreement), within 24 months i.e. on or before 01.10.2014. The parties were bound by the terms and conditions of the Agreement, duly signed by them. Under these circumstances, Opposite Parties No.1 and 2, were entitled to escalation in cost of the unit, in question, if any, for the years from 2012-2013 and 2013-2014. For the years 2012-2013, the inflation charges shown, in the document Annexure R-3 are Rs.88,172.69Ps and for 2013-2014, the same have been shown as Rs.66,491.93Ps. This escalation in cost was worked out, by Opposite Parties No.1 and 2, on the basis of Wholesale Price Index of the commodities, for these years. No cogent and reliable evidence was produced by the complainants, to rebut the calculation of inflation charges made by Opposite Parties No.1 and 2, for the years 2012-2013 and 2013-2014. Under these circumstances, the complainants are liable to pay Rs.1,54,664.62Ps. (Rs.88172.69Ps. plus (+) Rs.66491.93Ps),  on account of escalation in cost, correctly calculated by Opposite Parties No.1 and 2.

17.          So far as the escalation in cost, with regard to the remaining years is concerned, Opposite Parties No.1 and 2, are not entitled to the same. In case, for the years aforesaid Opposite Parties No.1 and 2, are also held entitled to escalation in cost, then there will be no end to their nefarious activities. If the unscrupulous builders continue delaying construction of the units/flats/villas, allotted to the consumers, for years together, then the latter cannot be penalized for the same. If the builders are given liberty to continue construction of the units, beyond the promised date of delivery of possession, as per the Agreement, without existence of any circumstances, beyond their control, then they may delay the construction, for years together, and the consumers will suffer at their hands, on account of making payment of escalation in cost. It would thus amount to indulgence into unfair trade practice. The submission of Opposite Parties No.1 and 2 in this regard, being devoid of merit, must fail, and the same stands rejected.

18.           As far as the levying of delayed interest payment of Rs.8,01,542/- after adjusting Rs.11,66,376/- (i.e. total Rs.19,67,919/-) is concerned, it may be stated here that once it has been admitted by Opposite Parties No.1 and 2 that they had already received payment of Rs.46,99,967/- (at page No.96 of the file) against the total sale consideration of Rs43,21,400/-,  at this stage, it does not lie in their mouth to say that the complainants are liable to pay delayed interest payment. It is not the case of Opposite Parties No.1 and 2 that they made demand of the installments towards the said unit but despite sending repeated reminders,  the complainants failed to pay the same. Otherwise also, not even a single document in the shape of reminder for the said payment has been placed on record by Opposite Parties No.1 and 2 to prove their stand that there was delay in making payment, as a result whereof, the said delayed interest payment was levied upon the complainants. Had such document been placed on record by Opposite Parties No.1 and 2, the matter would have been different. It is, therefore, held that the said charges are illegal and arbitrary and, as such, liable to be rejected. 

19.           As far as the levying of holding charges of Rs.1,80,000/- are concerned, it is submitted that Opposite Parties No.1 and 2 not entitled to the same because it is an admitted fact that physical possession has not been delivered to the complainants, till date. Therefore, the question of holding charges in the sum of Rs.1,80,000/- did not arise, at all.

20.           As far as the levying of Preferred Location Charges of Rs.7,10,600/- are concerned, it is submitted that Opposite Parties No.1 and 2 are not entitled to the same because the payment plan mentioned in the allotment letter (Annexure C-6 colly.) as well as payment plan opted by the complainants alongwith Buyer Agreement (at page No.40), the PLC charges mentioned as ‘0’. Therefore, the question of Preferred Location Charges of Rs.7,10,600/- does not arise at all.

21.         Now the question arises, as to what amount is required to be paid by the complainants, to Opposite Parties No.1 and 2. It is an admitted fact that out of the sale consideration of Rs.43,21,400/-, the complainants had paid an amount of Rs.46,99,967/-. In this manner, Opposite Parties No.1 and 2 have received Rs.3,78,567/-in excess (Rs.46,99,967/- minus (-) Rs.43,21,400/-) out of the entire sale consideration. Apart from the above sale consideration, Opposite Parties No.1 and 2 were also entitled to the following amounts:-

S.No	Heads	Amount (Rs.)
1.	Service Tax + Building Cess	51,876/-
2.	Club charges	50,000/-
3.	IFMS	1,00,000/-
4.	Sewerage	20,000/-
5.	Electricity	50,000/-
6.	Water	40,000/-
7.	Service tax on services	15,400/-
8.	Inflations	1,54,664/-
9.	Add. Maintenance charges (Nov’14 to Marcvh’15)	6,566/-
		Rs.4,88,506/-
Amounts to be adjusted out of the above amounts
	Excess payment made (Rs.46,99,967/-minus (-) Rs.43,21,400/-)	Rs.3,78,567/-
	To be paid	Rs.1,09,939/-

 

Thus, as per the calculations made in the table above, Opposite Parties No.1 and 2, are legally entitled to only Rs.1,09,939/-, out of the demanded amount of Rs.32,84,458/- raised by Opposite Parties No.1 and 2 vide Annexure R-2, under various heads, as discussed hereinbefore.

22.           Whether, the complainants are entitled to compensation, under Section 14(1)(d) of the Act, on account  of mental agony and physical harassment and injury caused to them, is the next question, that requires determination. The complainants booked the villa, in question, with the hope to have a shelter over their head, but their hopes were dashed to the ground, when Opposite Parties No.1 and 2, failed to deliver physical possession of the same, despite the fact that huge amount was paid by them. According to the complainants, the possession of the villa was duly handed over to the complainants on 26.03.2014 and keys were also handed over to them by the representative of Opposite Parties No.1 and 2. Even the possession letter and an undertaking (Annexure C-16) was also got signed from the complainants on 26.03.2014.  On the other hand, Opposite Parties No.1 and 2 denied, regarding the offer of possession, through Annexure C-16 and denied that keys were handed over to the complainants because the question of possession did not arise, at all, as they failed to make the complete payment and, as such, claimed that Annexure C-16 is forged and fabricated document. Even the complainants were humiliated at the hands of Opposite Parties No.1 and 2 because when they alongwith their friends and family members performed havan/pooja in the said villa on 31.01.2015 and informed the Company that they shall be coming tomorrow for greh parvesh and lunch was also hosted by them for their friends, but when they visited the villa on the next day i.e. 01.02.2015, they found that the main entrance of the villa was bolted with locks over the existing locks of the complainants. To prove this, the complainants also placed on record photograph (Annexure C-17). Thereafter, the complainants rushed to the site office and reported the matter to the caretakers, who informed them that they have bolted the lock on the directions of the Director Mr.Parminder Singh Sehgal and threatened them not to break/open the said lock. Opposite Parties No.1 and 2 in their written statement stated that their staff in order to take proper care of the property, put another lock on it.  The complainants, thus, underwent tremendous mental agony and physical harassment, on account of the acts of omission and commission of Opposite Parties No.1 and 2 because they paid huge amount to Opposite Parties No.1 and 2 and inspite of handing over keys of the villa, in question, to them and, thereafter, did not allow them to enter their own villa, despite repeated requests, certainly amounted to harassment and mental agony. In this view of the matter, the complainants, in our considered opinion, are entitled to compensation, for mental agony and physical harassment caused to them, at the hands of  Opposite Parties No.1 and 2, to the tune of Rs.2.00 lacs (Two Lacs), which could be said to be reasonable.   

23.           No doubt, Opposite Parties No.1 and 2 submitted in their written statement that Mr.Sanjay Jain had embezzled huge amount of the Company and had played fraud with them and, as such, a criminal case against him and employees, referred to above, was lodged. It may be stated here, that if there was any dispute between Opposite Parties No.1, 2 and its Director Sanjay Jain, for allegedly played fraud with the Company and allegedly embezzling its amount, then the third parties i.e. the consumers were not to suffer. The consumers while dealing with the Company, did not know as to who were the Directors thereof, and how their internal affairs were being managed. In case,     Mr. Sanjay Jain, former Director of Opposite Parties No.1 and 2,  allegedly played fraud with them, or allegedly embezzled the amount belonging to the Company, then the consumers could not be held liable to suffer for that. Opposite Parties No.1 and 2 had their legal remedy of recovery of the amount allegedly embezzled by Sanjay Jain, Ex-Director, by proceeding against him under the criminal law. Opposite Party No.3 (Mr.Sanjay Jain) is no longer the Director of Opposite Parties No.1 and 2. Thus, no liability can be fastened upon Opposite Party No.3 by the complainants. The complaint against Mr.Sanjay Jain (Opposite Party No.3) deserves to be dismissed.

24.           Coming to the liability of Opposite Party No.4, it may be stated here, that the Buyer Agreement (Annexure C-6 Colly.) was executed between the complainants and Premium Acres Infratech (P) Ltd. The complainants only availed the loan facility from Opposite Party No.4 for the purchase of villa, in question, which was duly sanctioned by it. So, we are of the view that there was no fault on the part of Opposite Party No.4 for not handing over physical possession of the villa to the complainants.  So, the complaint against Opposite Party No.4 is liable to be dismissed.

25.           No other point, was urged by the Counsel for the Parties.

26.           For the reasons recorded above, the complaint is partly accepted with costs, against Opposite Parties No.1 and 2, in the following manner:-

(i)             Complainants are directed to make the payment of sale consideration of the balance amount of Rs.109939/- to Opposite Parties No.1 and 2, within a period of one month from the date of receipt of a certified copy of the order, as detailed vide para No.21 above.

(ii)            Opposite Parties No.1 and 2 shall jointly and severally hand over the legal physical possession of the villa/unit, in question, within a period of two months, to the complainants, from the date of receipt of a certified copy of this order, on payment of the legally due amount, by the complainants, as indicated in Clause (i) above.

(iii)           Opposite Parties No.1 and 2 shall jointly and severally execute the sale/conveyance deed and get it registered in the name of the complainants after handing over the actual physical possession of unit, in question,  within a period of one month thereafter. The stamp duty, registration charges and all other incidental and legal expenses for execution and registration of sale deed shall be borne by the complainants.

(iv)           Opposite Parties No.1 and 2 are further jointly and severally, directed to pay compensation, in the sum of Rs.2.00 lacs (Two Lacs) for causing mental agony and physical harassment, to the complainants, within two months from the date of receipt of a certified copy of this order.

(v)            Opposite Parties No.1 and 2 are further jointly and severally, directed to pay cost of litigation, to the tune of Rs.50,000/- to the complainants.

(vi)           In case the order is not complied with, within the stipulated period, as indicated above, then Opposite Parties No.1 and 2 shall be jointly and severally liable to pay the amount mentioned in Clause (iv) alongwith interest @12% per annum from the date of default, till realization, besides payment of cost of litigation.

27.           However, the complaint against Opposite Parties No.3 and 4 is dismissed with no order as to cost.

28.           Certified Copies of this order be sent to the parties, free of charge.

29.           The file be consigned to Record Room, after completion.

Pronounced.                                                                                     Sd/-

26.10.2015                               

[JUSTICE JASBIR SINGH [RETD.]

                                                                                 PRESIDENT

 

                                                                                                            Sd/-                                [DEV RAJ]

                                                                                                MEMBER

 

Sd/-

 [PADMA PANDEY]

MEMBER

rb