Complainant by filing this complaint has submitted that complainant was searching for a flat to be purchased by him for his own residence for which he started negotiation with Mr. Ravi Rahul, Resident Representative of Eden City at the Eden City, Maheshtala in the month of October-November 2010 for purchase of an Apartment and Car Parking Space and it was informed by the Resident Representative of Eden City many times that as per offer if any one books a flat and makes full down payment, he will not have to pay for the parking space and will get an Open Car Parking Space free. After the offer of ‘Get Parking Space Free’ of the op contacted the op at the above address and complainant being attracted with the offer, decided to book a three bed room apartment at Eden City, Maheshtala at holding No.B-1, 90/A/1 New Budge Budge Trunk Road, Ward No. 31, P.O.-Maheshtala, Dist- 24 Parganas (South), West Bengal and accordingly complainant obtained an Application Form from the op being Nos. EC/01229 and deposited a sum of Rs. 1,02,575/- only being the application money vide cheque No. 180975 dated 07.11.2010 drawn on Indian Bank and the Get Car Parking Space was also confirmed when complainant came across with an advertisement published in the Times of India, Ranchi on 24.10.2011 (Monday) where the op drew the attention of the public at large as under – Again After 3 years “Celebrate Hapiness at Eden City, Maheshtala Book Your Dream Home and Get Car Parking Space Free”.
Op by an allotment dated 24.11.2010 allotted the complainant of three bed rooms Apartment No. 603 at 6th Floor of Tower 10, having salable area of 1377 Sq. Ft. corresponding to build up area of 1047 Sq. Ft. along with right to use one open car parking space at Eden City, Maheshtala at holding No. B-1-90/A/1/New Budge Budge Trunk Road, Ward No.31, P.O.-Maheshtala, Dist- South 24 Parganas, Kolkata – 700141 and confirmed having received the application money of Rs. 1,02,575/- only. Op in the said allotment letter dated 24.11.2010 mentioned the price of the said apartment is Rs. 25,81,875/- only and in the said allotment letter there were options for “Installment Payment Plan” and “Down Payment Plan”. In the said allotment letter it is also mentioned that if installment payment plan is obtained in that event apart from application and allotment money the complainant has to pay 8 and final installment comprising of Rs. 25,81,875/- plus Pro-rata Service Tax on 25 percent of sum payable towards apartment at the rate10.3 percent totaling Rs. 26,48,356/-
Complainant chose to pay Down Payment Plan at the time of allotment, a cash discount of 10 percent will be offered on the entire receivable amounts due till final payment and a basic sum of Rs. 2,32,369/- only excluding the allotment money which is to be paid within the stipulated time mentioned in clause 2(a) of the letter of allotment within 45 days from the date of issue of allotment letter as total allotment money and in doing so the allotee will save a sum of Rs. 25,819/- by way of cash discount. The said letter of allotment dated 24.11.2010 there were provisions for open car parking space, payment for the membership of the club payment of caution deposit and in the said letter of allotment it has been specifically mentioned that if the allotee opt for the Down Payment Plan at the time of allotment the total basic sum payable is Rs. 26,07,306/- only excluding payments due on possession towards club membership and caution deposit.
That apart from the said letter of allotment on 24.11.2010 op also handed over a copy of general terms and conditions to the complainant relating to possession, compensation for delay in possession and on the basis of the representation of the op, complainant decided to opt for Down Payment Plan and accordingly paid Rs. 26,73,125/- only by 6 Nos. of cheques on 06.01.2011 drawn on State Bank of India, Indian Bank, HDFC Bank, Allahabad Bank on the understanding that a free open car parking space will be allotted to him.
Although op assured the complainant that a open car parking space will be allotted to him free if the complainant paid the entire amount being the value of the Apartment in Down Payment Plan but in fact the complainant was forced to pay the value of the open car parking space at the time of making down payment at a time and complainant ventilated his grievance by a letter dated 13.06.2011. by an email dated 11.11.2011 regarding taking of price of open car parking space, violating the promise that open car parking will be provided free of cost if the payment for the value of the apartment is made at a time.
Subsequently by an email on 14.11.2011 the representative of the op confirmed that the car parking amount will be adjusted at the time of possession. By an email dated 14.11.2011 the representative of the op confirmed that as per General Terms and Conditions possession will be given in 30th September, 2011 with a grace period of 6 months, hence ops are starting giving possession from March, 2012 onwards. By a letter dated 11.05.2012 op forwarded a Notice of Possession/Call for possession with regard to complainant’s Apartment being Flat No. 603, Tower No. D-10.
By an email on 09.11.2012 complainant further strongly ventilated his grievance for not granting open car parking space free of cost although complainant paid the entire value of the flat at the time in Down Payment Plan and complainant further reiterated in the said email that on 14.11.2011 representative of the op through email confirmed that as per discussion with Ravi Rahul car parking space amount will be adjusted at the time of possession and finally complainant in the said email demanded to adjust the open car parking space amount amounting to Rs. 1,18,750/- only already paid from the total amount demanded and to send a fresh statement.
Subsequently by an email on 21.11.2012 complainant sought for confirmation from the op for payment of due balance adjusting Rs. 1,18,750/- only being value of the open car parking space. Op by an email dated 22.11.2012 confirmed that the concerned Department will cross check the calculation and will intimate the complainant shortly. Thereafter by an email on 14.12.2012 the op informed that the complainant that since there is an interest charge on the delayed payment so the op will not be able to offer the scheme for the car parking amount adjusted against the possession dues.
That after receiving the above said email the complainant strongly protested against the decision of the op by an email on 05.01.2013 contending that if there was any delayed payment the op could have claimed interest from the complainant which was not done. Op by an email dated 10.01.2013 took that plea that due to dishonor of cheque of the complainant the offer of free parking space on timely payment could not be extended anymore and it is further contended in the said email that the spirit of the offer is lost on charging interest on delayed payment so it is no payable. It is further contended in the said email that compensation for delayed for delivery of possession is calculated at the rate of 0.10 percent.
In the above circumstances complainant submitted that op fails to comply the terms and conditions of the agreement and also fails the right to receive the free car parking space which complainant is entitled to get in view of the fact there was no dishonor of cheque and payment schedule of the complainant no such provisions for delayed payment interest or dishonor of cheque was shown by the op, though op issued such statement of payment.
Further op failed to satisfy the complainant under what basis they have offered Rs. 18,809/- the amount of compensation payable on account of delay in handing over possession of the Apartment to the complainant. As per General Terms and Conditions clause 9, possession of the apartment of the complainant was to be given not later than 30.09.2011 plus grace period of 6 months. Complainant further submitted that if the op as per the clause 8 of General Terms and Conditions can demand and collect 15 percent interest from the allotee if any installment is not paid within due date then why the op will pay compensation at the rate of 0.10 percent for not giving possession in time to the complainant?
In the above circumstances for not providing upon car parking space although promised and denied on flimsy ground and compelled the complainant to pay full value of the open car parking space and by not allowing adequate compensation at the rate 15 percent for not giving delivery of possession within stipulated date. So, in view of the above circumstances, complainant filed this complaint for redressal for adopting unfair trade practice and for their negligent and deficient manner of service.
Accordingly complainant has prayed for directing the op for refund the sum of Rs. 1,18,725/- and also 15 percent interest over the said amount and further 15 percent interest over the total payment for delayed delivery of possession and for compensation.
Fact remains the notice of this complaint was sent to the op and op received it which is evident from the postal truck report and that was delivered on 27.01.2014. But thereafter op did not turn up to contest this case for which the case is heard exparte.
Decision with reasons
Fact remains in this case as per direction through this Forum even after service of notice of the complaint to the op by Speed Post when the case was fixed for exparte hearing complainant submitted his evidence in chief and as per order of this Forum, complainant also sent the evidence in chief to the op by Speed Post and op received the said evidence in chief on 22.10.2014. But even then op did not contest when the argument was heard on exparte and now we shall have to consider the unchallenged testimony of the complainant including the material documents as filed by the complainant in view of the fact, ops got ample chance to defend the case but they did not turn up.
The moot question is whether complainant actually whether complainant was offered such benefit to get car parking space free if he buys a 3 BHK Flat having 1377 Sq. Ft. area subject to payment of Rs. 26,73,125/- and in this regard we have gathered that complainant has submitted the brochure wherefrom it is found that the said brochure was published in the Times of India Ranchi (Monday) 24.10.2011 and in the said brochure it is specifically mentioned a term “ Buy a flat Get Car Parking Space free” and another declaration “Book Your Dream Home and Get Car Parking Space Free”and that document is from his Exhibit-E from where we find that the car parking is a part of the flat and if anyone purchased the flat he must have to get a car parking space free.
Further from Exhibit-B allotment letter it is clear that complainant was allotted three bed rooms apartment No. 603 on 6th Floor of Tower No. D-10 having salable area of 1377 Sq. Ft. corresponding to build up area of 1374 with right to use one open car parking space at Eden City, Maheshtala Housing Project and that letter was sent by the op to the complainant Robin Murmu having Customer Id. EC/01229 dated 24.11.2010 and from the said allotment letter, it is also clear that by installment total amount of flat was Rs. 26,48,356/- and in the said letter it is also specifically mentioned if any purchaser opts for the down payment balance at the time of allotment cash discount of 10 percent will be offered on the receivable amount due to till final payment and being repaid and in doing so, the purchaser shall have to save Rs. 25,519/- and some other matter is also noted. From the said allotment letter Exhibit – B, it is clear that if purchaser opts for down payment plan at the time of allotment total basic sum payable at Rs. 26,07,306/- and corresponding service tax payable extra is Rs. 65,819/-.
Now we shall have to consider whether complainant opted down payment plan or not. In this regard we have gathered from the letter of the complainant that complainant on 06.01.2011 handed over six cheques being Nos. 220717 of SBI for Rs. 10,00,000/-, Cheque No. 180979 of Indian Bank for Rs. 7,53,125/-, cheque No. 221313 of HDFC Bank for Rs. 5,30,000/-, cheque No. 593284 of Allahabad Bank of Rs. 2,60,000/- and last cheque No. 180975 on 07.11.2010 of Indian Bank for Rs. 1,02,575/- and total by those cheques he paid Rs. 26,73,125/- and complainant by that letter asked the op for accepting the same and was received in respect of that.
In this regard it is found that on 11.05.2012 vide Exhibit – I op informed to the complainant that the apartment as per allotment letter along with car parking space as allotted to the complainant his almost ready to handover and from that letter alongwith Exhibit – A, it is found that final payment on demand for possession dues was issued by the op to the complainant along with demand on payment of on account of overdue interest of bank charges wherefrom it is found that there was no dues on account of overdue interest or bank charges that is specifically mentioned in all the columns 000 and in the said letter it is noted that compensation amount for parking handover possession of apartment of Rs. 18,809/- is also paid to him.
So, considering that final demand on payment of possession dues on the ground of overdue interest and bank changes it is clear that complainant paid the entire amount at a time for down payment plan and as per receipt of order issued by op it is clear that there was no dues on the ground overdue interest or bank charges which was issued by the op.
Considering the agreement, allotment letter and information of possession letter, it is clear that complainant booked a flat and as per agreement he is entitled to a free car parking space without any further payment and in the notice of possession also it is specifically mentioned that flat along with car parking space would be handed over, not only that by a letter dated 22.11.2012, op reported that about handing over car parking space, the concerned department was asked to cross the cheques and calculation and matter shall be informed shortly.
Subsequently on 14.12.2012 op reported to the complainant that there is an interest charge on delayed payment. Hence op is not able to offer the scheme for the car parking amount adjusted against the possession dues and by letter dated 10.01.2013 it is specifically mentioned that “Your cheaue was dishonored to offer a free car parking space what could not be extended anymore and apart from this op informed that compensation is calculated at the rate0.10 percent and complainant shall be ready as it will be handed over to the complainant before possession. But the offer in the car parking on timely payment could not be extended anymore.
But main question is whether the 5 cheques which were issued by the complainant on 06.01.2011 were encahsed by the op and whether same were dishonored or not in this regard we have gathered that complainant no doubt adopted down payment plan and handed over cheques and truth is that op received those six cheques and it was for parking payment of dues on the ground of overdue interest as bank charges is found NIL and most cheques were encashed and there was no dues in respect of overdue interest or bank charges. So, appertaining the letter of the op dated 14.12.2012 and 10.01.2013 in respect of dishonor of cheque etc. is completely baseless and without any foundation. But by a letter dated 10.01.2013 op reported that as soon as the complainant’s cheque was dishonored and so payment was not received on time. But that letter cannot be believed in view of the fact already op issued such receipt that there is no dues against any bank charges over dues or for any other reasons and considering that fact we are convinced to hold that the above letter as sent by the op is completely baseless and without any foundation regarding dishonor of cheque or payment of installment.
But truth is that payment was made at a time when complainant adopted down payment plan and op by notice for possession or call for possession letter also confirmed that possession of car parking space along with flat will be handed over very soon and it will deliver on 11.05.2012. So, it is clear that there was no dues of the complainant to be paid by the complainant to the op and op has confirmed by their receipt issued by them as customer copy and not only that for delayed delivery of flat a cheque of Rs. 18,809/- was paid by the op what complainantadmitted it.
But peculiar factor is that it is specifically mentioned in the final demand for payment of possession dues that in case of down payment discount of Rs. 1,18,750/- shall be given to the complainantand from final demand payment of possession receipt it is clear that complainant paid total Rs. 27,72,694/- that is including service tax and it is specifically mentioned in the said receipt that after calculation op received Rs. 27,40,625/- and amount of due is also noted NIL. So, invariably complainant is entitled to get back Rs. 1,18,750/- as discount of down payment of the entire amount and fact remains when down payment has been made, complainant is entitled to get back Rs. 1,18,750/- from the op. But only op for grabbing that money sent such reply on 14.12.2012 and on 10.01.2013 that assessed interest is charged on delayed payment. So complainant is not entitled to get back benefit of the car parking amount or car parking space and considering that fact, it is clear that the op adopted unfair trade practice and they practically adopted such plea without any basis on the contrary the op’s own calculation receipt and payment receipt sent with notice of possession or call for possession dated 11.05.2012 confirms that there was no dues to be paid by the complainant and down payment was made by the complainant at a time to get such benefit from op when offered such relief.
On the date of that letter and op has confirmed by their own account or statement that there is no dues from the complainant. So, it is clear that op did not appear before this Forum only on the ground that they have realized that they have adopted unfair trade practice and they have deceived the complainant for which they did not contest and it was clear to them after receipt of all the documents and copy of complaint that their letters as issued by them on 14.12.2012 and 10.01.2013 are all false statement on the part of the op.
In the light of the above observation we are convinced to hold as per agreement as per notice of possession letter, as per statement of account as issued by the op to the complainant and at the time of delivery of the flat to the complainant, complainant had no dues and truth is that complainant paid down payment plan as per down payment scheme at a time. So, complainant is entitled to get benefit of the discount on down payment to the extent of Rs.1,18,750/- and at the same time complainant is entitled to get free car parking space as per agreement and brochure, under any circumstances op sent legal right to deceive the complainant in such a manner when complainant is proved as a consumer of the op.
Further after considering the agreement, it is clear that executed by the op and the complainant, the flat purchaser the present complainant cannot be held giving for breach of contract and as per law the agreement is binding upon both the parties. So, it is proved beyond any manner of doubt that complainant is entitled to get the car parking space free of cost as per agreement and at the same time complainant is entitled to get refund of the discount on down payment that is a sum of Rs. 1,18,750/- from the op.
But anyhow in this case Ld. Lawyer for the complainant submitted one ruling on Competition Commission in case No. 19/2010 passed on 03.01.2013 and parties Belairy Owners’ Association – Vs – DLF Ltd. HUDA and Department of Town Country Planning, State of Haryana and that order was passed u/s 27 of the Competition Act. The Ld. Lawyer for the complainant tried to convince that ruling is applicable in this case. But after proper study of the Competition Act 2002 and C.P. Act 1986, it is clear that the Competition Act 2002 is empowered to determine the fare and healthy competition in Indian Economics for faster increasing growth and development of economy and to implement development policy with a factual fresh utilization of economic resources and make the satisfactory work for the benefit and welfare of the consumer.
But after comparative study of both the act we are convinced that we are not empowered to declare any agreement as void or illegal. But that power is given to the authority of the Competition Commission of India alone and fact remains in that case several theorization were considered including the agreement in between the parties and practically Competition Commission of India passed such order as per provision of 27 of the Act which empowered the Commission to pass such appropriate order and as per Competition Act the said provision Section 27 is applicable and so Commission of India passed such order for contravention of Section 3 & 4 of the said Act and as per provision of Section 27 (a) Commission of India can pass such order imposing penalty and also to delete such part of the agreement in future.
But this Forum has no such legal authority and if this Forum considers such judgement and pass any order that is completely without any jurisdiction. If complainant has any grievance in this regard against the op company, complainant may file such application before the Competition Commission of India. But this Forum is empowered to decide this consumer dispute and including the fact whether there is any negligence and deficiency of service or any deceitful manner of practice as has been made by the op or any unfair trade practice has been adopted by the op. But under any circumstances the terms and conditions of the agreement cannot be declared null and void or cannot declare void by this Forum but can hold whether agreement is binding upon the parties or not.
Probably this ruling was placed before this Forum to create a legal complication. But under any circumstances this judgement cannot be applied in this case even if it is found that there is any unilateral condition tagged with the agreement because in this case as per agreement complainant and op complied everything except one condition and complainant got possession of the flat. But only he has not got the discount on down payment and also the free car parking space and that issue has been decided by this Forum in favour of the complainant and probably only to hallucinate this Forum the judgement of Competition Commission of India has been submitted.But it is not at all applicable before the Forum to get such relief which should be determined by the Competition Commission of India as per principal of law but that can only be applied in case of a dispute u/s 27 of Competition Act not under the C.P. Act.
In the light of the above observation and findings we are convinced to hold that no doubt op adopted unfair trade practice and only to deceive the complainant in such a manner violating the terms and conditions of the agreement including possession letter and also the payment schedule as issued by the op, we are convinced to hold that complainant has been harassed mentally, physically and also he has suffered much loss in the meantime. Foradopting unfair trade practice and deceitful manner of practice by the op Real Estate Company, so op is also bound to pay some compensation to the complainant indluding litigation cost because for op’s negligent and deficient manner of service and for dececitful act complainant was compelled to file this complaint for redress his grievance.
For adopting unfair trade practice by the op penal damages shall also be imposed to check the op’s such sort of unfair trade practice in future.
In the result, the complaint succeeds in exparte form.
Hence, it is
ORDERED
That the complaint be and the same is allowedexparte with cost of Rs.10,000/- against the op.
Op is directed to refund Rs. 1,18,750/- (discount on down payment) and also a sum of Rs. 25,000/- compensation for harassing the complainant and for deceiving the complainant in such a fashion and accordingly op is directed to pay total sum of Rs. 1,18,750/- discount of down payment + Rs. 10,000/- cost of litigation + Rs. 25,000/- as compensation in total Rs. 1,53,750/- within one month from the date of this order failing which over the said amount the penal interest at the rateRs. 200/- per day shall be assessed till full satisfaction of the decree and if penal interest is collected it shall be deposited to this Forum’s account.
Further for adopting unfair trade practice and for deceiving the consumer in such a manner, op is imposed penal damages of Rs. 30,000/- which is imposed to check such sort of unfair trade practice as adopted by the op and to save the consumer from the hands of such op and to rectify such sort of mal-practice as adopted by the op and said amount shall be deposited within one month from the date of this order.
Op is directed to comply the order within one month positively failing which penal action may also be started against them u/s 27 of C.P. Act 1986 for disobeyance and non-compliance of the Forum’s order.
