Haryana

StateCommission

A/1007/2014

Matrix Buildwell Private Limited - Complainant(s)

Versus

Sanjay Kumar Singh - Opp.Party(s)

10 Mar 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

Remand Appeal No.1007 of 2014

First Appeal No: 784 of 2013

Date of Institution: 28.10.2013/10.11.2014

Date of Decision: 10.03.2016

 

M/s Matrix Buildwell Private Limited (S.S. Group) 4^th Floor, MGF, The Plaza, MG Road, Gurgaon through its authorized person Manoj Sukhla.

                                      Appellant/Opposite Party No.1

Versus

1.      Sanjay Kumar Singh s/o Sh. Rajendra Singh

2.      Priyanka w/o Sh. Sanjay Kumar Singh

Both Residents of Flat No.1301, Tower-C, Block-3, Delight and Splendours, Freedom Park Life, Sector-57, Gurgaon.

                                      Respondents/Complainants

3.      M/s Countrywide Promoters Private Limited having its registered office at M-11, Middle Circle, Connaught Circus, New Delhi through its Managing Director.

4.      M/s B.P.T.P. Limited having its registered office at M-11, Middle Circle, Connaught Circus, New Delhi through its Managing Director. 

Respondents/Opposite Parties No.2 & 3

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Shri B.M. Bedi, Judicial Member.

                             Shri Diwan Singh Chauhan, Member   

 

Argued by:          Shri Sidhant Goel, Advocate for the appellant.

Shri Vicky Sharma, Proxy for Shri Sapan Dheer, Advocate for respondents No.1 and 2.

Shri Hemant Saini, Advocate for respondents No.3 and 4.

                                                   O R D E R

 

B.M. BEDI, JUDICIAL MEMBER

 

Sanjay Kumar Singh and Priyanka-Complainants (respondents No.1 and 2 herein), filed Consumer Complaint No.409 of 2011, against M/s Matrix Build Well Private Limited and others-Opposite Parties (appellants and respondents No.3 and 4), before District Consumer Disputes Redressal Forum, Gurgaon (for short ‘the District Forum’). The complaint was allowed vide order dated September 18^th, 2013.  The opposite parties/appellants filed Appeal No.784 of 2013 before this Commission, which was dismissed vide order dated November 7^th, 2013. In Revision Petition No.1409 of 2014, the order of the State Commission was set aside and the case was remanded for deciding it afresh.

2.      Brief facts of the present case are that the complainants purchased Flat No.1301, Floor 15^th, Tower-C, Block-3, having super area (approximately) 2250 Square feet from opposite parties in their project known as “PARK LIFE” at Gurgaon. A Flat Buyer’s Agreement (Annexure A-2) was executed between the parties. The tentative consideration price of the flat was Rs.60,64,763/-, inclusive of the current External Development Charges (EDC). Club Membership Charges (CMC) and Interest Free Maintenance Security (IFMS) was payable in addition to the above said consideration amount. The CMC charges were Rs.50,000/- and IFMS were Rs.50/- per square feet of super area. The parties were bound by the terms and conditions mentioned in the agreement Annexure A-2. The possession of the flat was to be delivered to the complainants within 24 months from the date of commencement of construction of the block. However, the opposite parties failed to deliver possession to the complainants within the stipulated time. The possession was handed over to the complainants on October 16^th, 2010 and that too only for fit outs. The term ‘fit out’ was no where mentioned in the Haryana Apartments Act. The opposite parties did not provide the basic facilities, that is, Club, Grounds, Parking etcetera and also charged extra amount in the shape of EDC, IDC etcetera.  Hence, the complainants filed complaint under Section 12 of the Consumer Protection Act, 1986.

3.      The opposite parties contested complaint by filing reply. It was stated that the parties were bound by the terms and conditions of the Buyer’s Agreement. It was denied that there was any delay in handing over possession to the complainants, rather, the complainants did not make the payments in time. The opposite parties did not charge any illegal amount from the complainants on account of EDC, IDC etcetera. It was denied that the car parking facility was free. Denying the other allegations of the complainants, it was prayed that the complaint be dismissed.

4.      On appraisal of the pleadings and evidence of the parties, the District Forum accepted complaint observing as under:-

1.      The complainants are entitled to get the Conveyance Deed executed and registered from the opposite party No.1 within 30 days failing which they are entitled to interest on the amount deposited by them for that purpose.

2.      The complainants are entitled to refund of Rs.3,00,000/- from the opposite party No.1 on account of ‘parking space’.

3.      The complainants are entitled to interest @ 18% per annum from the date of filing of the complaint till order and @ 9% per annum from the date of order till its realization and Rs.5,000/- litigation expenses.

 

5.      While assailing the order of the District Forum, learned counsel for the appellants/opposite parties has raised two fold arguments. Firstly, the District Forum has got no jurisdiction to entertain and decide the complaint as the price of the flat was more than Rs.20.00 lacs, that is, beyond the pecuniary jurisdiction of the District Forum. Secondly, that the parking charges were chargeable as per the buyer’s agreement and in view of the judgment of Hon’ble Supreme Court in  Naharchand Laloochand Private Limited v. Panchali Co-operative Housing Societies Limited (2010) 9 SCC 536.

6.      So far as the first plea is concerned, it is admitted that the price of the flat is more than Rs.20.00 lacs. However, relief claimed is with respect to parking charges of Rs.3,00,000/- + EDC +IDC.  

7.      In Vinita Goyal and another versus M/s Unitech Limited and another, III(2014)CPJ 139 (Har.) this Commission observed as under:-

“13.             In view of above, the irresistible conclusion is that the complainants have invoked the jurisdiction of this Commission by counting the price of flat as price of service. For assessing the value of service, the price of flat cannot be counted because the flat is an immoveable property. That apart, the complainants have failed to show how the value of services rendered by the opposite parties is more than rupees twenty lakhs.”

8.      In view of the above, the first contention raised by the appellants is repelled.

9.      Now coming the second contention with respect to the Parking Charges, learned counsel for the appellants has referred to the judgment rendered by Hon’ble Supreme Court in DLF Limited v. Manmohan Lowe and others, Civil Appeal No.10930 of 2013 (Special Leave Petition (Civil) No.34275 of 2009).

10.    It is admitted that the agreement is dated 28^th August, 2010; the possession was delivered on 16^th October, 2010. As per Clause 2.1 of the agreement, the possession was to be delivered within 24 months from the date of commencement of construction. Thus, possession being delivered on 16^th October, 2010, certainly was within the stipulated period.

11.    Now the only issue survives with respect to the parking charges. The District Forum has relied upon Naharchand Laloochand Private Limited’s case (Supra), wherein it was held by Hon’ble Supreme Court that parking charges were not payable.

12.    In DLF Limited v. Manmohan Lowe and others’ case (Supra), relied upon by the learned counsel for the appellant, Hon’ble Supreme Court distinguished the judgment of Naharchand Laloochand Private Limited’s case (Supra), observing that the said judgment was delivered in the context of the Maharashtra Ownership of Flats Act, 1963 (MOFA) and the Development Control Regulation (DCR) framed under the Maharashtra Regional Town Planning Act, 1966. Thus, Naharchand Laloochand Private Limited’s case (Supra), was not applicable to the 1975 Regulation Act or the Apartment Act.  Paragraph No.42 of the judgment is reproduced as under:-

“42.   Considerable reliance was placed by the apartment owners on the Judgment of this Court in Naharchand Laloochand Private Limited (supra). First of all, the Judgment is not at all dealing with the community and commercial facilities in a group housing society with reference to the provisions of Section 3(3)(a)(iv) of Development Act. The above-mentioned Judgment was delivered in the context of the Maharashtra Ownership of Flats Act, 1963 (MOFA) and the Development Control Regulation (DCR) framed under the Maharashtra Regional Town Planning Act, 1966. In that case this Court was required to examine as to whether a stilt parking can be considered to be a garage under the definition of “flat” Page 53 53 under MOFA. As per the format provided under MOFA only a “flat” or “dwelling unit” or “shop” or “garage” can be sold by a developer. Stilt parking could not be separately sold in terms of the provisions of the MOFA, a statutory format of the agreement and the provisions of the DCR. Such a restriction is not there either under the 1975 Regulation Act or the Apartment Act and there is no occasion to consider whether stilt parking can be sold along with the apartment. In any view, the present case is not concerned with the question of stilt parking. We are in this case, pointedly concerned with the facilities provided under Section 3(3)(a) (iv) of Development Act, consequently, the reasoning of Naharchand Laloochand Private Limited (supra) are inapplicable to the facts of this case, if examined in the light of the Regulation Act and the Apartment Act.”

13.    As per Clause 1.4 of the Flat Buyer’s Agreement, the complainants agreed to pay the amount mentioned in the said agreement to be payable in addition to the basic sale price of the flat. Clause 1.4 is reproduced herein below:-

“1.4   As a part of said Premises, the Company has reserved one covered parking space, which shall also be allotted and conveyed to the Allottee(s). The Allottee(s) shall pay an additional Consideration of Rs.3,00,000/- (Rupees Three Lakhs Fifty Thousands only) per covered parking.”

14.    Since, the parking charges were agreed to be paid by the complainants, the appellant was certainly entitled to charge the same.

15.    Faced with the situation, learned counsel for the complainants submitted that since the appellant was charging for the parking area, therefore, they should transfer the title of the same in the conveyance-deed. Learned counsel for the appellant candidly acceded to this request submitting that besides being in the agreement clause 1.4, wherein the appellant had agreed to allot and convey to the allottee(s) one covered parking space, the appellant would transfer title for the same at the time of execution of the conveyance-deed.

16.    The District Forum in paragraph No.5 of the impugned order denied the relief of refund of EDC/IDC to complainants observing the same to be payable as per agreement and the complainants have not preferred any appeal, therefore, the same has attained finality.

17.    There is another prayer by the complainants that since they have deposited the amount for registration of the conveyance-deed on 4^th October, 2010 and the appellant has been utilizing the said amount, therefore, they should pay interest on that amount.

18.    The contention appears to be plausible.  The appellant shall pay interest @ 9% per annum on the amount deposited towards the stamp duty and other charges for execution of the conveyance-deed from the date of deposit till execution of the conveyance-deed. However, the complainants shall be liable to pay the stamp duty and other charges at revised Collector Rate, whether increased or decreased.

19.    In view of the above, the impugned order is modified in the manner indicated above and the appeal stands disposed of accordingly.  

 

Announced 10.03.2016

(Diwan Singh Chauhan) Member

(B.M. Bedi) Judicial Member

(Nawab Singh) President

CL