Punjab

Fatehgarh Sahib

RBT/CC/908/2018

Renu Jain - Complainant(s)

Versus

TDI Infratech Ltd - Opp.Party(s)

In person

21 Mar 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL

  COMMISSION

                       FATEHGARH SAHIB.           

                  

RBT. No	:	CC/908/2018
Date of Institution	:	RBT/CC/908 of 2018
Date of Decision	:	05/09/2018
		21/03/2023

                  

         

Renu Jain wife of S.P.Garg D/o Sh. Shanti Paul Jain R/o 12, Preet Vihar, Opp. GNDU, Amritsar-143105

                                                                                                                     …………....Complainant

 

                                                Versus

1.   TDI Infratech Ltd. SCO No.144-145. 200ft vide International Airport Road, TDI City, Sector-117, Mohali (Punjab) through its Managing Partner.

Alternative Address

TDI Infratech Ltd. At:9, Kastubra Gandhi Marg, New Delhi-110001

2. TDI Infratech Ltd At: 144-145. 200ft vide International Airport Road, TDI City, Sector-117, Mohali (Punjab) .
3.  Magnus Facilities & Maintenance Pt. Ltd. TDI City, Sec. 117 Mohali

                                                                              ..………....... Opposite Parties

 

Complaint under Section 12 of Consumer Protection Act 198(Old)

Quorum

Sh. S.K. Aggarwal, President

Ms. Shivani Bhargava, Member

Sh. Manjit Singh Bhinder, Member

Present: Sh.S.P.Garg, authorized Representative of Complainant(through VC).

     Sh.Puneet Tuli, counsel for OPs no.1 and2 (through VC).

      OP no.3 Ex-Parte

Order By

Ms. Manjit Singh Bhinder, Member

 

 The  complaint has been filed against the Ops (opposite parties) , Under Section 12 of Consumer Protection Act-1986 (old) alleging deficiency in service with the prayer for giving direction to the OPs to refund Rs.50,000/- as club membership , Rs.20,000/- as IFMS , Rs.23,333/- as extension fees, along with interest @ 9% P.A and  to pay Rs.5000/- as compensation for mental pain and unfair trade practice and to recalculate M/S Charges w.e.f 25/05/2012 as the rates agreed by RWA.

1.  The complainant purchased one plot no.869, (MPP 10994) measuring 233.33 Sq. Yard in the  year 2008 in TDI City Sec.117,118 Mohali which was originally allotted by the OP’s to Mrs. Anita Dahiya W/o Sh. Naresh Dahiya R/o Sec.-15, Sonipat. The OP’s who developed the TDI City, charged Rs.25,000/- as transfer fees from the complainant on 15.11.2008 vide receipt no.TC-8840. The complainant made all the payments including payment  of Rs.50,000 on 29.09.2011 for club membership and Rs.22060/- as interest free maintenance security (IFMS) on date 06/03/2012. The Plot Buyers agreement was executed & signed on date 6 March, 2012, similarly maintenance agreement was also signed on 6^th March, 2012 and possession of the Plot was delivered on 25.0.5.2012. The complainant became the owner in possession after all  the payments  were made by complainant to the Ops and paid the maintenance charges regularly. The complainant sold this plot to  Smt. Dalip Kaur W/o Sh. Harmit Singh on 1.6.2018, who paid all the transfer charges to Ops receivable as per the policy of Ops. The Original receipt card was stamped by Ops on its reverse side that the plot has been transferred to Smt. Dalip Kaur. The Ops also charged Rs.50,000/- as club membership from Smt. Dalip Kaur meaning there by the Ops charged this amount of Rs.50,000/- twice i.e from the complainant as well as from the  new buyer of the plot. How can the Ops charge club membership fees from two persons, against one membership ? During the period  from the year 2009, till the sale of plot , no intimation was given by Ops if the club had come into existence or not and the Ops did not issue any club membership card in this regard, meaning thereby complainant was never enrolled as member of the  club by Ops.  The complainant has not been ever able to utilize the services of the club and at the same  time Ops have recovered Rs.50,000/- from new buyer Smt. Dalip Kaur. As such, the complainant is entitled to the refund of Rs.50,000/- paid as club  membership charges and Rs.22,060/- as security for maintenance since the complainant had paid all dues of maintenance, till the date of further sale i.e 1.6.2018, which proves that  new vendee had stepped into the shoes of complainant. The complainant sent a letter to Ops to refund these club membership charges as well  as IFMS of Rs.22,060/- since  the contract of the Ops had terminated  with the complainant and new contract with new vendee had taken place. But to no avail.  The Ops sent a notice dated 11.12.2017 that non registration of this plot in the office of sub-registrar has caused revenue loss to the State Govt. and directed complainant to get the same  registered by 31^st March, 2018 failing which penalty was payable to the Ops, under constraint.  The complainant was made to pay the extension fee to the tune of Rs.23,333/- on dated 30.3.2018 to the OPs vide receipt no.EESD-90401. This amount was never a part of the plot buyer agreement and more over the amount was not paid to State Exchequer  as averred by the OPs about loss to State Revenue.  The plot was taken into possession on 25.5.2012  and maintenance charges since then were being paid  regularly which means the hold of the plot was with complainant from the date of delivery of possession of the plot, meaning thereby the OPs were not holding the said plot to whom full payment stood paid already. The OPs had already given the option to the complainant that the plot can be sold further by way of endorsement on the sheets provided in the end of the agreement which are 5 in number. This made it clearly evident that the plot can be transferred  5 times to any person without registration in the office of sub registrar.  The complainant purchased the plot  from  Mrs. Anita Dahiya and sold it to   Mrs. Dalip Kaur and the OPs  made endorsement of transfer each time by charging the transfer fees as per their policy.  The latest buyer Smt. Dalip Kaur had paid Rs.2.00 Lacs approximately to the OPs for endorsement of transfer which shows that the registration was not compulsory as per the policy of the OPs.  The payment of maintenance charges of Rs. 9994/- were also made on 30.3.2018 upto March 2019. While these charges were due as Rs.1754 as on 4^th Sep. 2017 as per E-mail of Mrs. Triptjot kaur of OP 3 calculated upto 31^st  March 2018.  These charges of Rs.9994/- are not correct in the light of the agreement with RWA whereby the P.M rates were slashed. The Letter of OP3 shows the dues payable by 31.5.2017  were Rs.22542/- at slashed rates while for the year 2017-18 the dues were Rs.8050/- i.e total Rs.30592/- were payable. The payments made were Rs.25000/- on  12.04.2017 and Rs.4656/- on 14.07.2017/- leaving a short fall of Rs.936/-.  The total dues upto  31^st March 2019 workout to be Rs.8050/- +936= 8986/- while the OP-3 charged Rs.9994/-. The OP no.3 needs to recalculate the charges  w.e.f 25.5.2012 as per  the agreement with RWA , which were chargeable from the date of possession i.e 30.4.2012 received on 25.5.2012 when the possession of the plot was handed over  or from the date of execution of referred agreement which is dated 30.3.2012 but Ops charged the same  w.e.f 2.8.2011 illegally. Moreover, the OPs did not have full completion certificate as on 25.5.2012 about which information was sought. Hence this complaint.
2.          Notice of the complaint was given to the OPs no.1,2 and 3 through registered Post, who appeared and filed  their written version . On later stage , OP no.3 was proceeded against Ex-Parte vide order dated 2.12.2020.
3.          The complaint has been contested by the OPs no.1 and 2, who filed written version ,raising preliminary objections, that the present complaint is not maintainable  as the complainant  does not fall under the definition of  “Consumer” as defined under Section 2(1)(d)(ii) of the Consumer Protection Act,1986. The present complaint is bad for mis-joinder of necessary parties. This  commission  does not have pecuniary jurisdiction to entertain the present complaint.  The relief claimed in the present complaint is time barred. It is further alleged on merit that the receipt of alleged amount is admitted  subject to variation in the dates as stipulated in the complaint.  The buyers agreement and maintenance agreement were executed on the dates. However, it is worth mentioning here that the possession  of subject plot no.869 was offered to the complainant vide letter dated 30.4.2012, which was later on accepted by the complainant  on 25.5.2012.  After taking over the possession, the complainant always delayed the execution of sale deed on some pretext or other, despite various requests/reminder given by the OP Company. Even till date, the sale deed has not been executed.  The subject plot has been transferred in favour of Mrs.Dalip Kaur  on 01.06.2018. In fact, it is noteworthy that the complainant never  wanted to have the plot  for her own use.  Rather, being a confirmed investor she wanted to earn profit by selling the same without spending big amount  on execution of sale deed  such as stamp duty,  Registration fee and other charges.  This is why , she firstly took  extension from the company qua execution  of sale deed in the month of March 2018 and then, only within 2 months afterwards, she sold her plot to the present allottee i.e. Dalip Kaur. This conduct shows that she never had the intention to keep the plot for her own use but rather for investment.  After the transfer, Mrs. Dalip Kaur is the alottee but she has not been impleaded as a party to this complaint by the complainant herself. As per the policy of the OP company, the club membership is non-transferrable and the complainant is still member of the said Club and she can enjoy the Club facilities at any point  of time. Further about  non-transferability of the Club membership , Chandigarh club , Gym-Khana Club etc are examples of the clubs where club where club membership is  not allowed to be transferred. Be that as it may, as per the company policy , refund can only be granted after  9 years from the date of subscription of the Club Membership.  After completion of the club premises, immense publicity was done by the OP Co. among the allottees qua starting of the Club. Further , it is  important to mention here that the Club  is equipped with many facilities like swimming pool, restaurant & Bar, badminton Club Gymnasium, banquet hall etc. The Facility of club and its membership is available to the present complainant as well. The updation of the Club is an ongoing process and any allottee, including the complainant was having option to utilise the same as per his/her convenient schedule.  The club is fully operative and at the time of completion of the club, this  fact was immensely published by the OP Co. The maintenance security has not been charges twice by the OP company . At the time of transfer , the same was transferred  in the account of new transferee i,e Mrs. Dalip Kaur from the account of the complainant acknowledging the mutual understanding between the complainant and Mrs. Dalip Kaur . In view of this, the complainant ought to have impleaded Mrs. Dalip Kaur as necessary Party. But since, this could have prejudiced the ulterior motive of complainant , she knowingly did not bring the new transferee on record in the present complainant in order to hide relevant facts. The complainant is not entitled to any refund of , either Club Membership or maintenance Security .  The complainant was offered possession on 30.4.2012 and she took possession on 25.5.2012.  Afterwards, the complainant never  came forward to get the  sale deed executed, just in order to avoid payment of requisite stamp and registration fee causing loss to Government. The complainant was persuaded many time, but in vain.  The complainant kept avoiding the execution of sale deed for more than 5 years and this inaction and inertia on the part of the complainant, forced the company to take a stern action against her and other similarly situated allottees who were also avoiding the execution of sale deed even after accepting the possession. As a result thereof, a resolution was passed and a decision was taken to penalise such inactive allottees and a public notice was issued in December 2017 calling upon all of them to ensure the execution of the sale deeds before 31^st March 2018. However, in view of the explanation tendered by the complainant , the execution of sale deed was allowed to be deferred on the payment  of extension fee in the form of penalty.   The valid title is conveyed only by a document which  is registered under the statue itself. The complainant is proceeding on her own assumption and presumptions  which have no basis in terms of law.  The project of OP is Mega housing project duly approved by the empowered committee of the  Punjab State Government under Industrial Policy,2003 and the same is not governed by the PAPR, Act 1995, just opposite to other non-mega housing real estate projects of the State. Similarly, until  September 2014, the OP was not under the obligation to apply or obtain the  Completion Certificate in term of Section 14 of the said PAPR Act, 1995, as the present project  comprising the subject plot was exempted from the application of all  provision of PAPR Act, 1995  by  virtue of notification no.CTP(Pb) MRP-13/3799 dated 11.04.2008. To properly  appreciate the fact and circumstances surrounding the development and exemption of project from PAPR Act, 1995, the provisions of PAPR Act, 1995, are not applicable on the project  of  Company.  Hence the  Company was not liable  or bound to get the completion certificate in respect of its Mega Housing Project.  This fact also seems justifiable in view  of the massive size of the project  covering an area approximately of 300 acres as of today as this could have led to inconvenience for the entire project allottees since the said certificate could not have been issued until the development of the entire massive sized project. Nevertheless, this could have led to frustration of objective of Industrial Policy 2003, which  emphasized  the speedy  and smooth development of mega projects in the State. However, in the year 2014, when the residents of the said mega housing project  faced some issues due to non-availability of those certificates, then , in order to resolve the issue comprehensively , the Department of Housing and Urban Development  came out  with the policy regarding issuance of “Partial Completion Certificate” in respect of the developed part of project land and the same are having  due sanctity as equal to completion certificate provided by section 14 of the PAPR Act,1995. After the  enunciation of this policy only, the Mega Project in the State were directed to obtain Completion/partial completion certificate in respect of their developed portion of the project.  Additionally, the said policy provided for checklists, barriers and procedure for issuance of such partial completions in as much as it also provided for inspection of the subject site by the Joint Inspection Committee before issuance of the said partial completion certificate.  After establishment of this enormous nomenclature only , the issuance of partial completion was made possible. Since the development of subject plot site and the concerned project was already  completed way long back before coming into force of this regulation, the OP  Company  subsequently, applied for the partial completion of the said plot site and after going  through the requisite procedure only, the partial  completion of the said project site  ( and concerned plot site) was issued on 24.6.2015. Accordingly , OPs no.1 and2 prayed for dismissal of the complaint with cost.
4. The complaint has been contested by the OP no.3, who filed written version ,raising various preliminary objections. It is alleged on merit that the maintenance charges are leviable with effect from the date when the possession of plot or property is offered.   Accordingly , OP no.3  prayed for dismissal of the complaint with cost.
5.   The complainant in support of his complaint produced affidavit and  documents along with complaint EX.C.XI to Ex.C.XII.  The OPs no.1 and 2 along with written reply produced documents EX.R1 to EX.R4.
6.   Heard. Entire record perused.

               The Complainant has prayed for directing OPs to refund  Rs.50,000/-   club membership fee ,  Rs.22,060/-  as IFMS and Rs.23,333/- as extension fee along with interest @ 9% P.A. Besides this, complainant has asked for  Rs.5,000/- for mental pain and unfair trade Practice and to recalculate maintenance charges w.e.f  25.5.2012 at the rates agreed to by RWA.

7.   New owner Dalip Kaur after purchasing the said plot from the complainant has stepped into shoes of the complainant and her club membership is also based on the ownership of the said plot, which was earlier owned by the complainant. Understandably, the club inside the project is meant to serve the residents  residing there in . Therefore,  against one  membership of the club i.e based on ownership of one specific plot, charging of club membership fee from two persons is not justified.  It is the assertion of the complainant that OPs i.e TDI recovered the club Membership fee of Rs.50,000/-  from new owner Dalip Kaur, which fact has not been denied  by the OPs.  The OPs i.e TDI can not take the plea  that the complainant is not entitled to refund of  Rs.50,000/-  on the simple ground that Dalip Kaur  is not a party. It was incumbent upon the OPs to plead and prove that they did not charge club membership  fee of Rs.50,000/-  from new owner Dalip Kaur also. In such a situation OPs i.e TDI are liable to refund the club Membership fee of Rs.50,000/-  to the complainant.  
8.                          The complainant has paid Rs.22,060/- as interest free maintenance security (IFMS) on 6.3.2012 (Ex.C3). The complainant sent a letter to OPs to refund IFMS of Rs.20,000/- ,  since the contract of OPs has terminated with the complainant (Ex.C6). The OPs in their version has stated that maintenance security has not been charged twice by them i.e from the complainant as well as from  Dalip Kaur.  They have stated that at the time of transfer,  the maintenance security was transferred in the account of new transferee i.e Dalip Kaur from the account of complainant, acknowledging  the mutual understanding between the complainant  and Dalip Kaur.  The OPs have mentioned that the complainant ought to have impleaded Dalip Kaur as a party but has knowingly has not done so. The OPs i.e TDI have not furnished any evidence for not having received IFMS of Rs.22,060/- from new owner Dalip Kaur nor they have denied having received IFMS of Rs.22,060/- from the complainant.  The OPs i.e TDI can not take the plea  that the complainant is not entitled to refund of IFMS charges of  Rs.22,060/-  on the simple ground that Dalip Kaur  is not a party. It was incumbent upon the OPs to plead and prove that they did not charge IFMS of  Rs.22,060/-  from new owner Dalip Kaur also. In such  situation OPs i.e TDI are liable to refund the IFMS charges of Rs.22,060/-.                                               The complainant has exhibited a notice dated 11.12.2017 ( Ex.CVII/1) received from OPs mentioning that non registration of the Plot  in the office of Sub Registrar has caused revenue loss to the state Govt. and directed the complainant to get the same registered by 31.3.2018failing which penalty would be payable by the complainant, as per Company Policy. The complainant was made to pay extension fee of Rs.23,333/- on 31.3.2018 (Ex.CVII/2). The complainant has mentioned that it was never part of  plot buyer agreement and moreover the amount was not paid to state Exchequer. The complainant has taken the plea that possession of plot was taken on 25.5.2012 and maintenance charge had been paid regularly meaning thereby that hold of the Plot continued to be with the complainant from the date of delivery of possession, further implying that OPs were not holding the said Plot .  The OPs have mentioned that complainant never came forward to get the sale deed executed, in order to avoid payment of registration fee, causing lost to  Government. Further keeping in view explanation  tendered by the complainant, the Execution of   sale deed was allowed to be deferred on payment of extension fee in the  form of penalty. As  per Ex.CVIII/3 enclosed by the complainant the Ops with reference to her request made on 30.3.2018 in which  she had applied for extension of time for registration of sale deed, had extended time for execution of sale deed from 1.4.2018 to 31.3.2019.   The OPs have termed the amount of Rs.23,333/- deposited by the complainant as ‘extension/holding charges’ The complainant has cited  order of Hon’ble National Commission, New Delhi in CC no.351 of 2015 decided on 3.1.2020 on the subject of holding charges , as per which, the  developer shall not be entitled  to any  holding charges though  it would be entitled to interest for the period the payment is delayed. The perusal of the above cited order of Hon’ble National Commission, New Delhi indicates that it relates to cases of ‘housing construction- delay in taking  possession by the allottee’. In such cases, it has been held that developer  is not entitled to any holding charges, even in cases where possession has been delayed on account of allottee having not paid entire sale consideration. In the present complaint, the complainant had herself requested the Ops for extension in time for registration of sale deed which was duly allowed by the OP vide Ex.CVIII/3 dated 30.3.2018 subject to payment of Rs.23,333/- as extension/holding charges . In this case the complainant had taken possession of  the Plot on 25.5.2012. From the perusal of the above facts the amount of Rs.23,333/- appears to be  extension charges for granting extension in time for registration of sale deed, that too on request of the complainant.  Therefore, the complainant prayer for refund of Rs.23,333/-  is not justified.

The complainant has given in detail the deposit of maintenance charges of the said Plot vide Ex.CVIII, Ex.CIX/2, Ex.CIX/3, Ex.C.IX/1 and Ex.C.IX/2. The complainant has also exhibited agreement with RWA Ex.C.IX/1. The complainant has submitted that , as per agreement with RWAEx.CIX/1 the maintenance charges are chargeable from the date of possession dated 30.4.2012 received on 25.5.2012 or from the date of execution of referred agreement which is 30.3.2012 Ex.CIV, but OPs have illegallycharged the same with effect from 2.8.2011. Further complainant submitted that OPs did not have full completion certificate as on 25.5.2012. The OPs in their version has mentioned that the project was a mega housing project (EX.R1) duly approved by the empowered committee of the Punjab Govt.and thesame is not governed under PAPR Act 1995. Until September 2014 , the OPs werenot under obligation to apply or obtain the completion certificate in terms of section 14 of PAPR Act 1995 as the project was exempted from application of PAPR Act 1995 by virtue of notification dated 11.4.2018 (Ex.R3). The notification regardingprocedure of completion/partial certificate of mega housing project was issued by Govt. of Punjab on 2.9.2014 (Ex.R4). TheComplainant has exhibited copy of MOU Ex.CIX/1 between TDI resident Association and M/sMegnus Facilities & Maintenance on 8.5.2017 where in tariff ofmaintenance charges were agreed tobetween the parties.

​The complainant has cited Judgement of Hon’ble Supreme Court of IndiaUtpal Trehan VsDLF Home Developers Ltd in Civil appeal no.4690 of 2022, wherein it has been held that maintenance charges  ought to have been paid to the association .

9.  In view of above said discussion , the complaint is partly allowed and OPs no.1 and 2 are directed to:

[a] Refund the club membership fee of Rs.50,000/- deposited by the complainant along with interest @ 6% P.A. from the date of filing of the complaint within30 days, failing which ,interest @ 9% P.A shall be payable.   

[b] To refund security (IFMS) of Rs.22,060/- from date of filing of complaint along with interest @ 6% P.A.,  failing  which, interest @  9% P.A shall  be payable.

[c] The fee of Rs.23,333/- against extension in time for registration of sale deed is not refundable by OPs.

[d) The maintenance charges are recoverable from the date of possession i.e 25.05.2012 till date of sale to new owner Daip Kauri.e upto 1.6.2018, at the tariffs agreed to, between residents welfare association and OP no.3, as mentioned MOU as Ex.CIX/1.

[e] To pay Rs.10,000/- as harassment and litigation charges to the complainant.

 The compliance of this order be made by the OPs within a period 30 days from the date of receipt of certified copy of this order, failing which the complainant shall be entitled to recover the above said amount through legal process. The complaint could not be decided within the statutory period due to pandemic of Covid-19. Copy of this order be sent to the complainant and the OPs as per rules.   File be sent to District  Consumer Disputes Redressal Commission, Mohali, for consignment.

Pronounced 21 March 2023

                                                           

                                                            (S.K. Aggarwal)

                                                                   President

 

                                                                    

    

                                                                         (Shivani Bhargava)

                                                                   Member

 

 

                                                                          ( Manjit Singh Bhinder )

                                                                                                       

                                                                                Member