JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL)

The complainant booked a residential flat with the OP in a project namely ‘Capetown’ which the OP was to develop in Sector-74 of Noida.  Flat No. 1606 in Tower CM4 of the aforesaid project was allotted to the complainant vide allotment letter dated 22.05.2012.  The payment plan agreed between the parties reads as follows:

The possession of the flat was to be delivered to the complainant by October 2013.  However, the said period could be extended subject to a maximum of six months, due to unforeseen circumstances.  Thus, the possession of the flat ought to have been delivered to the complainant by 31.10.2013 unless the OP can show that the possession was delayed on account of circumstances which could not have been foreseen at the time of allotment. 

2.      Vide letter dated 12.10.2015, the OP required the complainant to pay an amount of Rs.12,35,656/- on or before 11.11.2015.  The aforesaid letter was titled as ‘Possession Payment Demand Notice’ though admittedly, the OP did not possess the requisite occupancy certificate on the date it was issued.  The occupancy certificate, according to the learned counsel for the OP, was obtained on 02.12.2015 and was a part occupancy certificate.  The complainant did not pay the amount of Rs.12,35,656/- demanded vide letter dated 12.10.2015 and has approached this Commission by way of this consumer complaint with the following prayers:

i) Direct the Opp. Parties to hand over the possession of Flat at the original price indicated in the Allotment letter,  to the Complainant herein immediately, in habitable condition, being complete in all respect, and execute all the required documents for transferring/ conveying the ownership right in his favour;

ii)         Direct the opposite party to refund a sum of Rs.81,250/- paid as park facing charges along with intereest @ 18% from the date of payment of such charges till its actual realization.

iii)        Direct the Opp. Parties to pay interest @ 24% compounded quarterly on the total amount paid by the complainant to the Opp. Parties towards the flat from October 2013 i.e. the expiry of the period as indicated in the terms and conditions (such period to be computed from the date of payment of the booking amount) until the actual physical possession of the apartment in terms of aforesaid prayers is handed over and the payment of amounts with interest.

iv)        Direct the opposite party to refund the service charge and the car parking charge paid by the complainant.

v)         Restrain the opposite party from charging escalation charge, Labour welfare, Water Connection & Advance Maintenance Charges & re-levied of Service Taxes plus interest on late payment.

vi)        Restrain the opposite party from charging maintenance fee @ Rs. 2.50 per sq. ft. and service tax and direct the opposite party to charge maintenance charges in consultation and agreement with the allottees or the  resident welfare association that may be formed of the duly elected member amongst the flat buyers and further direct that the maintenance service be provided by such agency as the allottees or resident welfare association may decide.

vii)       Direct the Opp. Parties to pay compensation to the complainant for the delay in handing over of possession, from expiry of the period as indicated in the buyer agreement/ detailed terms and conditions (such period to be computed from the date of payment of the booking amount) until the actual physical possession of the apartment is handed over to the complainant;

viii)      Direct the Opp. Parties to provide fully operational common amenities and facilities, while handling over the physical possession of the flat;

ix)        Direct the Opp. Parties to pay a sum of Rs. 30 Lacs, to the complainant, towards undue hardship and injury both physical and mental caused to them due to the acts of omission/commission on the part of Opp. Parties;

x)         Direct the Opp. Parties to pay at least a sum of Rs. 2 Lacs to the complainant towards the cost of litigation;

xi)        Direct the Opp. Parties to refrain from giving effect to the unfair clauses unilaterally incorporated in the Buyer Agreement/detail terms and condition;

xii)       Direct the opposite party to produce all the requisite sanction obtained from the relevant authorities.

xiii)      To hold and declare the Opposite Parties jointly and severally to be guilty of deficiency in service and unfair trade practice as per the provisions of the Consumer Protection Act, 1986;

xiv)      Declare that the various clauses of the Agreement are ‘unfair, ‘unreasonable’ and ‘biased’;

3.      The complaint has been resisted by the OP which has taken a preliminary objection that this Commission does not possess the pecuniary jurisdiction to entertain the complaint.  On merits, the allotment made to the complainant as well as the payment received from her has been admitted.  This is also the case of the OP that the demand raised by it vide letter dated 12.10.2015 was fully justified. 

4.      The first question which arises for consideration in this complaint is as to whether this Commission possesses the requisite pecuniary jurisdiction to entertain the complaint.  In terms of Section 21 of the Consumer Protection Act, this Commission would have pecuniary jurisdiction to entertain the complaint if the value of the goods or services as the case may be and compensation if any, claimed in the complaint exceeds Rs.1 Crore.  As held by a three-Members Bench of this Commission in Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Pvt. Ltd., the value of the services in such cases means the sale consideration agreed to be paid by the buyer to the seller.  In the ‘Possession Payment Demand Notice’ dated 12.10.2015, the OP claimed gross due of Rs.76,53,570/- inclusive of service tax amounting to Rs.2,33,776/-.  In my view, since the service tax was payable to the OP and not directly to the Government, it would constitute part of the sale consideration, for the purpose of computing the pecuniary jurisdiction of this Commission.  As far as compensation is concerned, though the complainant has claimed compensation for delayed possession @ 24% per annum, that being the rate of interest applicable to the complainant in the event of delay in payment of installment, even if compensation in the form of interest @ 12% per annum is calculated and is added to the sale consideration of Rs.76,53,570/-, the aggregate would come to more than Rs.1 Crore.  Therefore, this Commission does possess the requisite pecuniary jurisdiction to entertain the complaint. 

5.      As far as the merits of the case are concerned, the main issue which arises for consideration in this complaint is as to whether the demand of Rs.12,35,656/- raised vide letter dated 12.10.2015 was justified or not.  The aforesaid letter contained demand of (i) Interest on delayed payment (ii) Advance maintenance charges for one year + service tax, (iii) Labour welfare charges + service tax (iv) Water connection charges + service tax and (v) Escalation charges + service tax. 

6.      As far as interest on delayed payment is concerned, a total sum of Rs. 1,24,993/- was demanded by the OP from the complainant.  A perusal of Ex-OP/4 annexed to the written version filed by the OP would show that interest amounting to Rs.2,377/- + 144/- + 97/- + 548/- was demanded on account of delayed payment of installments which had become due upto 16.05.2012.  Thereafter, according to the OP, three more installments of Rs.7,11,698/- each became due on 16.05.2012, 19.05.2012 and 15.06.2012.  This is also the case of the OP that an amount of Rs.7,09,817/- became due on 15.11.2012. 

7.      A perusal of the payment plan agreed between the parties would show that four installments of Rs.7,11,698/- each were to become due on casting of basement roof slab, casting of fourth floor roof slab, casting of 8^th floor roof slab and casting of 12^th floor roof slab.  There is absolutely no evidence produced by the OP to prove that the basement roof slab and fourth floor roof slab had been cast by 16.05.2012 and 19.05.2012 respectively.  There is no evidence of the 8^th floor roof slab having been cast by 15.06.2012 and the 12^th floor roof slab having been cast by 16.05.2012 when the aforesaid installments had allegedly fallen due.  The learned counsel for the OP submits that the demand letters are sent only on the construction reaching the milestone stipulated in the payment plan.  However, in the absence of specific evidence proving casting of the slabs on or before the dates on which the demands were raised, the said contention cannot be accepted.  Therefore, the OP in my opinion, is not entitled to any late payment charges on account of the alleged delay in payment of the above referred installments.  Consequently, I hold that though the OP demanded a sum of Rs.1,24,993/- as late payment charges, the said demand was justified only to the extent of Rs.3,166/- (Rs.2,377/- + Rs.144/- + Rs.97/- + Rs.548/-). 

8.      As far as advance maintenance charges are concerned, the learned counsel for the OP has drawn my attention to clause 11 and 12 of the allotment letter which reads as under: 

“MAINTENANCE OF THE COMPLEX:

11. THAT on completion of complex/allotted unit /offer of possession, whichever is earlier, an Interest Free Maintenance Security (lFMS) toward the maintenance and upkeep of the complex shall be payable by the Allottee/s to the Company as mentioned in the payment plan on page no.2/3. The date of commencement of maintenance and upkeep of the complex for which monthly maintenance charges to be paid by the allottee based on super area of the unit,  shall be reckoned from the date of issue of “Letter of Offer of Possession“. The amount to be deposited as IFMS will be according to super area of the unit as mentioned in the sale brochure. Further, the monthly maintenance charges on actual basis as intimated to the Allottee/s by the Company from time to time shall be payable by the Allottee/s in advance by the seventh day of that month. In case of delay in receipt of monthly maintenance charges within this period, interest @ 2% per month or for any part of a month shall be charged for the period of delay. Further, the Company can also recover the default in monthly maintenance charges from the IFMS of the Allottee/s. Moreover, the Company/its nominee will be entitled to effect disconnection of the service to defaulting Allottee/s that may include disconnection of water/sewer, power/power backup, piped gas connection, if any, and debarment from usage of any or all common facilities within the complex. The company reserves the right to enhance the maintenance amount payable by the Allottee/s keeping in view the actual cost of maintenance of the complex. The company may outsource any or all maintenance activities to outside agencies and authorized them to do all acts necessary in this regard. The Allottee/s agrees to Sign “Maintenance Agreement", if required, with the company or with the maintenance agency undertaking the maintenance activity.

12.  THAT the maintenance of unit including the walls and partitions, sewer, drain, pipes etc. shall be the exclusive responsibility of the Allottee/s from the date of the possession. Further, the Allottee/s will neither himself permit anything to be done which damages any part of the building, staircase, shafts, common passages, adjoining units etc. nor violates the rules or bye-laws the local authorities, Maintenance Agency or the Association of Allottee/s. The Allottee/s shall be liable to rectify such damages to the satisfaction of the parties concerned, failing which the company may recover the expenditure incurred on such rectification from the Allottee/s security deposit.”

9.      I have carefully considered the above referred cases contained in the allotment letter. Though the aforesaid clauses contained in the allotment letter envisages payment of maintenance charges from the date of issuance of the letter of possession, the letter dated 12.10.2015 cannot be said to be letter of possession since the OP had not even obtained the requisite occupancy certificate by the date on which the aforesaid letter was issued.  Part occupancy certificate is stated to have been obtained on 02.12.2015.  Thereafter, no letter offering possession was sent to the complainant.  Moreover, the letter dated 12.10.2015 contains at least partly unjustified demands, for instance, interest on delayed payment amounting to Rs.1,24,993/- was demanded, whereas the amount which could actually have been demanded from the complainant comes to only Rs.3,166/-. Moreover, it also contained a demand for advance maintenance charges for one year which had not become payable on the date the said letter was issued, as even the occupancy certificate had not been issued by that date.  The aforesaid letter also contained a demand for water connection charges amounting to Rs.25,000/- + service tax.  The learned counsel for the OP relies upon the clause 41 of the allotment letter to justify the said charges.  Clause 41 of the allotment letter reads as under:

41.       THAT all the charges payable to various departments for obtaining service connections to the unit like electricity, telephone, water etc. including security deposit for sanction and release of such connections as well as informal  charges pertaining thereto will be payable by the Allottee/s. 

          The learned counsel for the OP states that in fact the demand of Rs.25,000/- was towards share of the complainant in the charges actually paid by the OP to the concerned department for obtaining the water connection.  He further states that instead of paying individually, for each flat, the OP has made composite payment in respect of the water connection provided to the flats. As held by this commission vide its order dated 14.03.2017 in CC/1009/2016, Kamal Kishore & Anr. Vs. M/s Supertech Limited, if this is so, the OP will be entitled to recover the actual charges paid to the concerned department from the complainant on pro-rata basis, i.e., depending upon the area of the flat allotted to the complainant vis-à-vis the area of all the flats in this particular project. The complainant will also be entitled to proof of such a payment to the concerned department along with a computation proportionate to her flat, before making payment under the aforesaid head.   The labour charges, according to the learned counsel for the OP, is the cess paid by them under Buildings and Other Welfare Cess Act, 1996.  Such demand has been upheld by this Commission in Kamal Kishore & Anr. (supra).  If the aforesaid charges comprise the cess paid by the OP under Buildings and Other Welfare Cess Act, 1996, the OP will be entitled to recover the same from the complainant on proportionate basis after providing the requisite computation to her.  The payment of interest if any, on the cess, will not be the liability of the complainant and therefore, the complainant will not be required to contribute towards payment of interest if any paid by the OP on the said cess, except interest @ 8% per annum from the date of the demand letter or the date of payment of cess whichever is earlier. 

10.    For the reasons stated hereinabove, I hold that out of the charges vide letter dated 12.10.2015, the OP is entitled to

1. An amount of Rs. 2,377/- + 144/- + 97/- + 548/- = Rs.3,166/-towards interest on delayed payment.

2. Water connection charges if paid to the concerned Authority, on proportionate basis subject to the OP furnishing proof of such payment, in terms of this order.

3. Labour welfare charges subject to furnishing proof and computation with respect to the said charges in terms of this order and

4. Escalation charges + service tax amounting to Rs. 3,88,797.19 /- .

   The OP will be entitled to the service tax on a proportionate basis.

   11.    As noted earlier, the possession of the flat ought to have been delivered to the complainant by 31.10.2013. The OP did not even have occupancy certificate on that date. After obtaining the part occupancy certificate, the OP did not send any letter of possession to the complainant. The demand raised vide letter dated 12.10.2015 was at least partly un-justified. Therefore, the complainant is entitled to compensation on account of delay in delivery of possession of the flat allotted to her with effect from 01.11.2013 till the date on which the possession is actually offered to her.

   As far as the clause providing for extension of time upto six months on account of unforeseen circumstances is concerned, no evidence has been lead to proof that the OP was prevented from carrying construction of the flat at any point of time prior to 31.10.2013. The learned counsel for the OP submits that there was agitation by the farmers in Noida. However, there is no evidence of the farmers having actually disrupted the construction work on the site of this project, on or before 31.10.2013. Therefore, in my opinion, the OP has not been able to prove that the construction of the flat was delayed on account of unforeseen circumstances. Considering all the facts and circumstances of the case, the OP, in my opinion, should pay compensation in the form of simple interest @ 8% per annum to the complainant with effect from 01.11.2013 till the date on which the possession is actually offered to her, in terms of this order.

   12.    For the reasons stated hereinabove, the complaint is disposed of with the following directions:

5. Within one month from today, the OP shall send a revised demand letter to the complainant alongwith documentary proof and computations in terms of this order.The learned counsel for the OP has demanded at least one month time for issuing such a letter.

6. The aforesaid demand will be adjusted by the OP out of the compensation payable to the complainant in terms of this order.

7. The OP shall pay compensation in the form of simple interest @ 8% per annum w.e.f. 01.11.2013 till the date on which the possession is actually offered in terms of this order.

8. The possession of the flat having super area admeasuring 1625 sq. ft. in terms of this order, complete in all respects, shall be handed over to the complainant within two months from today.

9. The OP shall also pay a sum of Rs.25,000/- as cost of litigation to the complainant.