ORDER                           Dated:  18.10.2016
Mohd. Anwar Alam, President

1.      Complainant has filed this complaint on  25-08-2015 and alleged
that on 15.02.2012  complainant paid Rs. 50000/- to OPs as booking/
token amount for the flat number B-1001 on 10th floor at Star
Rameshwaram Raj Nagar Extension, Ghaziabad UP  measuring 890 Sq. Ft.
against  agreed total cost of Rs. 2011425/- + Service Tax.   On
01.5.2012 , an agreement between the complainant and OPs was executed
and OPs agreed to handover the possession to the complainant on or
before 30.06.2013 with penalty @ Rs. 4 per square feet in  the event
of default.  Complainant paid a total sum of Rs. 21,52,882/- against
the agreed cost of Rs. 20,11,425/- with no delay in making the
payments.  On 31.03.2015, OP issued possession letter and demanded a
sum of Rs. 107081/- outstanding amount against the total cost of the
flat.    Complainant paid Rs. 87477/-  to the OPs as proportionate
amount.  Complainant further alleged that Rs. 84530/- was again
claimed by OP and he has paid the same and after calculation he found
that he has paid Rs. 64926/- in excess to OPs. Complainant also
alleged that OP deposited VAT of Rs. 20,114/- which is not applicable.
Despite no delay in making payments , OPs further charged a sum of Rs.
25,995/- on 26.05.2015 and issued credit note dated 24.01.2013 of Rs
23,033/-  for the waiver of interest. Complainant also alleged that as
per the agreement Rs 81800/- is due on OP for delay in possession for
over 23 months.  Despite legal notice dated 01.07.2015  sent to OPs,
they  failed to refund the excess amount and penalty. Hence
complainant prayed to direct OPs to pay Rs. 3,71,806/- as compensation
and refund of the excess amount.
2.      In reply, OPs  stated  that complaint suffer from an error of
non-joinder of co-applicant Smt. Renu Johri. OPs  admitted that
complainant had  paid Rs. 50,000/- as advance money and as per
agreement OPs agreed to handover the possession of the flat on or
before 30.06.2013 and penalty @ Rs. 4 per square feet was payable in
event of default. OPs also admitted that the complainant has paid a
total sum of Rs. 21,52,882/- against the agreed cost of Rs.
20,11,425/- and denied rest of the allegations made in the complaint.
3.      The complainant   has filed rejoinder to the reply and explained
that the objections filed by OPs are baseless. In support of his
complaint complainant filed his own affidavit along with documents
copy of agreement (Ex. C1) , copy of  credit note (Ex. C2) , copy of
legal notice (Ex. C3) , copy of final account of balance dues (Ex.
C4).
4.      In support of reply, OPs  filed affidavit of Sh. Nitin Kumar Gupta.
5.       Both the parties filed their written arguments.
6.      We have considered the evidence led by the parties and their
written and oral arguments and perused file.  In this case points to
be considered are as under:-
(a)     Whether complainant is a consumer?
(b) Whether there is any deficiency in service on the part of the OP?
    (c) Relief?
7. In reply ,OPs admitted  that the complainant had booked the flat
with OP1 by paying Rs. 50000/- as advance money , hence complainant is
a consumer.
6. In reply, OPs also admitted that on 01.05.2015 agreement between
complainant and OPs was duly executed and possession of the flat to
the complainant was to be handed over on or before 30.06.2013 and in
the event of default penalty@ Rs. 4 Sq. Ft. was payable to
complainant. OPs also admitted that complainant paid  total sum of Rs.
21,52,882/- against the agreed cost of Rs. 20,11,425/- .  Therefore,
looking to the admission by the OPs that  excess payment of Rs.
141457/- was made by the complainant to the OPs  against the agreed
cost of  flat i.e. Rs. 20,11,425/-+ Service Tax. Therefore, the
service tax of Rs. 76,531/- was to be deducted from excess amount of
Rs. 141475/-  hence the actual excess amount paid by complainant  to
OPs was Rs. 64926/-.  It is pertinent to mention herein that para no.
17 of the complaint  wherein the  losses to the complainant was
explained but losses to the complainant  was not denied specifically
by the OPs.  Hence genral denial whatsoever is evasive.
8. As per agreement to sell between the complainant and OP (Annexure
A)     possession of the  flat was to be given upto 30.06.2013 and  as
per clause 17 of the agreement and admittedly builder shall pay
compensation of Rs. 4 per Sq. Ft. per month on the area of the flat
i.e. 890Sq. Ft.   Hence, this penalty is payable to the complainant by
the OP till the date of possession of the flat.
   9.  OPs in  its preliminary objection objected that complaint
suffers from an error of non-joinder   of co-applicant (Smt. Renu
Johri ) and co-applicant was not made a party. As per agreement to
sell both Alok Johri and Mrs. Renu Johri were  the   buyer no. 1 and
buyer no. 2 having the common rights  in the purchased flat   ,
therefore, any one buyer can make a complaint  under the provision of
Consumer Protection Act 1986. So no question arises for non-joinder of
party.  Looking to the allegations made in the complaint and facts of
this case provision U/s 12 (1) (a) of the Consumer Protection Act 1986
is not attracted. Hence  arguments raised by the learned counsel of
the OP regarding permission of the forum prior to the filing a
complaint U/s 12 (1) (c) is not legally sustainable.    It is also
pertinent to mention herein that in agreement (Annexure A) between the
complainant and OPs there is no clause for the payment of VAT. As
parties are abiding by the agreement between them , therefore, demand
of the VAT by OP from the complainant is not justified.  It is also
pertinent to mention herein that in reply, OP did not justified the
demand of interest of Rs. 17,033/- and it is unexplained, therefore,
this demand is also unjustified.
10. Looking to the facts and circumstances, we are of the considered
opinion that deficiency in service on the part of OPs is proved. OPs
have charged excess payment from the complainant and their demands for
VAT and interest from the complainant were also unjustified .
Accordingly, we direct OP as under:-
1. To pay Rs. 64,926/- the excess amount paid by the complainant along
with interest @ 18% p.a. from the date of deposit till payment to the
penalty for delay in possession.
2.   To pay penalty of Rs. 4 per sq. ft. multiplied by total months
multiplied by   total area ( 890 sq.ft.) payable as per agreement
between parties  to the complainant till the date of possession of the
flat to the complainant.
3. To pay a compensation of Rs. 25,000/- to the complainant for mental
harassment.
4. To pay Rs 5000/-   as cost of litigation to the complainant.
11. The whole amount will be payable  within a period of two months
from the date of order failing which interest @ 18% p.a. will also be
paid on  account of compensation , costs of litigation and penalty of
delay in possession of flat as per the agreement.
12. Copy of the order be made available to the parties as per law.
File be consigned to Record Room.
Announced on this ………………