Delhi

StateCommission

A/11/194

TDI INFRASTRUCTURE PVT. LTD. - Complainant(s)

Versus

SARIKA GARG - Opp.Party(s)

19 Dec 2017

ORDER

IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL, COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments : 19.12.2017 

Date of Decision : 03.01.2018

Appeal No.194/2011

 

(Arising out of the order dated 05.04.2011 passed in Complaint Case No. 755/2010 by the

District Consumer Redressal Forum-East)

 

IN THE MATTER OF:

 

M/s. TDI Infrastructure Pvt. Ltd.,

9, Kasturba Gandhi Marg,

New Delhi-110001.                                                 ........Appellant

 

VERSUS

 

 

Mrs. Sarika Garg,

R/o 345, Gagan Vihar,

Delhi-110092.                                                                                  …….…Respondent

 

CORAM

 

SH. O. P. GUPTA, MEMBER (JUDICIAL)

SH. ANIL SRIVASTAVA, MEMBER

 

1.     Whether reporters of local newspaper be allowed to see the judgment?                                                               Yes/No

2.      To be referred to the reporter or not?                                                                                                        Yes/No

 

Present  :   Sh. Rudresh Jagdale, Counsel  for the Appellant.

                   Sh. Madhurendra Kumar, Counsel for the Respondent.

 

PER   :  SHRI  ANIL SRIVASTAVA,  MEMBER

          The order dated 05.04.2011 passed by the District Consumer Disputes Redressal Forum (East) in CC No.755/10 in the matter of Smt. Sarika Garg, Resident of Delhi Vs. M/s. TDI Infrastructure Pvt. Ltd., directing the OP/Respondent to refund Rs.1,38,453/- with interest @10% per  annum from the date of excess deposit till the date of realisation, awarding of Rs.75,000/- as compensation  and finally EDC charges and holding charges were waived off, has been impugned in this appeal preferred by M/s. TDI Infrastructure Pvt. Ltd., for short appellant, under Section 15 of the Consumer Protection Act 1986 (the Act) against Smt. Sarika Garg, hereinafter referred to as Respondent, praying for setting aside of the impugned order.

          Facts of the case necessary for the disposal of the appeal are these.

          A complaint was filed before the District Consumer Disputes Redressal Forum (East) Delhi by Smt. Sarika Garg, against M/s. TDI Infrastructure Pvt. Ltd., praying for refund of the excess amount paid with interest and secondly for waiving off the EDC and holding charges.

          The complainant/respondent attracted by the scheme introduced by the appellant/OP applied for a flat of land in their project at Kundli Haryana.   Registration amount of Rs.4,50,000/- was also furnished.  The cost of  the plot of land in question is stated to be Rs.24,47,500/- and as against that the complainant has paid a sum of Rs.25,85,953/- which means an amount of Rs.1,38,453/-  was paid by the complainant in excess of the requirement.  The complainant sought the refund of the abovementioned excess amount but the respondent  paid no heed to his appeal. Situation got aggravated when the complainant received a statement on 11.02.2010 indicating demand for the sum of Rs.2,20,053/- with interest of Rs.58,250/- towards EDC which according to the complainant was illegal since beyond the parameters of the agreement. The complainant has alleged that at the time of allotment of the plot he was assured that EDC charges would be around Rs.1,97,500/- which amount he has paid and therefore issuance of such demand for the purpose without any reason and rhyme was illegal and irregular.  Secondly, the demand of Rs.4,26,972/- towards holding charges also came as  a surprise to the complainant since the delay in handing over the plot was of the OP and under these circumstances she cannot be subjected to pay.

          The opposite  parties  in their WS before the District Fora had denied the averments made by the complainant.  They had  also taken the plea that the complainant has suppressed the material facts.  Case is also hit by the mis joinder of parties asmuch as M/s. Laxmi Narain Ram Das proper and necessary party have not been impleaded as  a party. The further allegation was that the complainant is not a consumer and thus not entitled to raise a consumer dispute under the Consumer Protection Act 1986. Finally their defence was that there is no deficiency on their part as their action is a in accordance with the orders/rule and instructions issued by the State Govt. from time to time.

          These three issues, namely,

• Excess payment of Rs.1,38,453/-
• Extra demand of Rs.2,20,053/- as EDC and, finally
• Demand of holding charges came up for consideration before the District Fora and the District Fora in response thereto after hearing both the parties and on perusal of  the documents filed, passed orders as under:-

“1.     The OP shall refund Rs.1,38,453/- together with interest @10% per annum from the date of excess deposit to the date of realisation.

 

2.       It is hereby directed that EDC charges and holding charges are waived off and the OP shall not make any demand from the complainant. The OP shall complete all the legal formalities including the execution of the sale deed in favour of the complainant.

 

3.       The OP shall also pay Rs.75,000/- as compensation for mental agony, harassment and sheer suffering to the complainant inclusive of litigation charges.”

          The complaint having been allowed, M/s. TDI Infrastructure Pvt. Ltd. have preferred this appeal, praying for setting aside of the orders passed on the ground that the impugned order is contrary to facts and law.  Moreover, the complainant was not a consumer and no tangible evidence was placed on record, claiming refund of the amount stated to have been paid in excess of the price of the plot of land.  They have also taken the objection that the complainant has suppressed the material facts to the effect that the complainant is required to pay the EDC which charges were enforced based on the orders passed by the State Government. Moreover, the contention of the complainant that they had obtained the requisite license from the appropriate  authority to sell the plot only in the year 2006, according to the  appellant herein, have no legs to stand since the said  authority was granted the license in the year 2004.  The appellants have denied that excess payment has been made by the complainant/respondent. The respondent in their reply has reiterated their submission made earlier.

          The matter was listed before us for arguments on 19.12.2017 when the counsel for both sides appeared and advanced their arguments.  We have perused the records of the case.

          Short question for adjudication is whether the appellant – opposite parties are liable to refund the excess amount towards the plot of  land. This leads to another question whether the excess amount was paid by the complainant/respondent.  The cost of the plot of the land, as admitted by both sides, is Rs.24,47,500/-.  The fact that an amount of Rs.25,85,0953/- was paid by the complainant is also not in dispute. The appellant-opposite party have not raised  any objection this effect either before the Ld. District Fora or before this Commission. This leads to an inescapable conclusion that the amount of Rs.1,38,453/- was paid in excess and the recipient is thus liable to refund.  Having regard to these facts, finding no infirmity in the impugned order, we uphold it to the extent that the appellant-respondents are liable to refund the excess amount.

          The next point to examine is whether the demand of the appellant – opposite party asking for payment of EDC and holding charges is in accordance with the instructions  issued by the State Govt.  The Ld. Counsel for the appellant has drawn our attention to a letter No.LC 722/2008/12093 dated 15.12.2008 issued by the Directorate of Town & Country Planning, Haryana indicating that the rates for EDC have been revised and therefore their demand in this behalf is just and proper and as per the instructions. However, on scrutiny of the aforementioned letter it is apparent and noticed that the revision of rates of EDCs are for plots for commercial purposes.  The ld. Counsel for the respondent has argued stating that the notification emphasised  by the appellant is not applicable to them since the plot of land in their case is not for commercial purpose and therefore  any reliance on the said notification for dealing with the case in hand is misplaced.

          On perusal of the said letter, we are convinced that the demand raised by the appellant is without proper authority and thus not justified.  Having regard to this we are of the considered view that the impugned order on the subject suffers from no infirmity.

          The last point for consideration is whether the holding charges demanded by the appellant is permissible. For this purpose we may have to examine the circumstances where the holding charges can be imposed. The agreement of the complainant – respondent is that these charges cannot be imposed on them since the possession of the plot in question has not been handed over. On the other hand, the argument of the appellant – opposite party is that physical possession of the plot has not been handed over owing to non  receipt of the payment due against them. They were otherwise ready to hand over the possession. It is because of the complainant’s folly the possession has not been handed over and for his own wrong he cannot be allowed  to take advantage on benefit.

          The Hon’ble NCDRC in their judgement in the matter of Puneet Malhotra Vs. Parsvnath – CC No.232/14 – decided on 29.01.2015 has held that the issue of holding charges comes into play only when the complainant accepts the possession. In this connection the decision of this Commission in the    matter of Abdul Waseem Vs. DLF – CC 127/03 – decided on 02.06.2006 is relevant where the court has allowed the prayer of the complainant and waived off the illegal and arbitrary holding charges.

          In the given case admittedly, the possession has not been handed over.  Having regard to the law settled by the Hon’ble NCDRC the obligation of the complainant for paying holding charges commences only after physical possession. To put it differently for holding charges condition precedent is the possession. In the absence of the factum regarding possession the demand raised for  payment of holding charges is unjust and improper and accordingly we do not accept t he prayer made by the  appellant in this behalf.  We find no merit in the contention raised by the appellant on this account.

          Ordered accordingly.

          Copy  of this order may be forwarded to the parties to this case free of cost as statutorily required.  Copy of this order may be forwarded to the District Fora for information.

          File be consigned to Record Room.

 

 

(ANIL SRIVASTAVA)                                           (O.P. GUPTA)                                    

MEMBER                                                                MEMBER (JUDICIAL)