BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No. 48 of 2015
Date of institution: 05.02.2015
Date of Decision: 07.01.2016
Dr. Abhinav Jindal son of Dr. Anand Jindal, resident of H.No.1, Sector 1, Jail Land, Ambala City.
……..Complainant
Versus
Omaxe Ltd., Omaxe Greens, Dera Bassi, District Mohali through its Managing Director/Chairman.
………. Opposite Party
Complaint under Section 12 of the
Consumer Protection Act, 1986.
CORAM
Mrs. Madhu. P. Singh, President.
Shri Amrinder Singh Sidhu, Member
Mrs. R.K. Aulakh, Member.
Present: Shri Vishal Aggarwal, counsel for the complainant.
Shri Munish Gupta, counsel for the OP.
(Mrs. Madhu P. Singh, President)
ORDER
The complainant has filed the present complaint seeking following direction to the Opposite Party (for short ‘the OP’) to:
(a) to pay him interest @ 18% per annum on the deposited amount till handing over the possession of the apartment.
(b) to withdraw the entire maintenance charges and delayed registration charges.
(c) to pay him rent @ Rs.15,000/- per month for the last two years alongwith interest @ 18% per annum till the handing over of possession.
(d) to pay him Rs.5.00 lacs as costs towards harassment.
(e) to refund him Rs.1,26,551/- which was charged as excess, with interest @ 18% per annum.
(f) to pay him Rs.50,000/- as costs of litigation.
The case of the complainant is that he had entered into an agreement with the OP for purchase of residential flat No.301, 3rd Floor, Unit Type Alpha-1, Green Tower-3 in the year 2007. Originally Mr. Ashok Kumar and Mrs. Mamta Goyal had entered into an agreement to purchase this flat from the OP in January, 2007. The agreement was transferred in the name of the complainant on 10.05.2007. The sale consideration of the flat was Rs.17,42,500/- As per the plan chosen by the complainant, payment was to be made as the construction proceeded. As per conditions of the agreement the construction was to be completed within a period of 30 months i.e. by February, 2010 subject to further extension of 6 months. Believing the assurances of the OP, the complainant continued to make payment of the installments. The OP had unilaterally and without consent of the complainant increased the price of the flat by Rs.1,26,551/-. Thus the complainant had paid a sum of Rs.18,69,051/- towards the sale consideration of the flat. However, the construction of the flat has not been completed and the complainant kept on reminding the OP about the delay in construction. The complainant sought the reasons for delay but the OP assured verbally that the matter would be settled at the earliest. The OP asked the complainant to pay the balance due amount so that possession of the apartment could be handed over within one month from the date of full and final payment. The complainant paid the amount due under protest. Inspite of receipt of entire amount the OP did not hand over the possession of the apartment on the ground that construction was not complete. The complainant sent many letters to the OP for handing over the possession. The complainant received letter from the OP for payment of maintenance charges and the complainant vide letter dated 25.04.2013 explained that there was no question of paying any charges as possession of the apartment was not handed over to the complainant. The OP vide letter dated 29.10.2013 asked the complainant to get the registration of flat done and in response to this letter, the complainant approached the OP for giving him possession of the flat to which the OP expressed inability and asked the complainant orally to get the registration done and possession would be handed over lateron. The OP imposed fine on the complainant on the ground that he had not registered the flat in his name. On this the complainant approached the OP who stated that it shall waive of the said charges only if the complainant forgoes the penalty in terms of agreement and shall not demand possession till completion of the project. Upon receipt of legal notice from the complainant, the OP approached the complainant for settling the matter amicably and assured the complainant that possession of the flat would be given alongwith penalty in terms of the agreement and the fine imposed on the complainant would be waived off. However, the complainant continued to receive the monthly maintenance charges from the OP. The OP has not completed the construction as more than 4 years period has elapsed from the stipulated date of completion of the project. As per Clause 27 (d) of the agreement the OP is liable to pay a sum of Rs.5/- per sq. ft. per month for the period of delay. Against this credit of Rs.1,80,000/- was raised but the same was reduced to Rs.1,60,000/-. With these allegations the complainant has filed the present complaint.
2. The OP in the preliminary objections of the written statement has pleaded that the complainant has concealed material facts from this Forum and he purchased the unit for the purpose of investment. On merits, it is pleaded that the apartment was originally allotted to Ashok Kumar and Mamta Goel in May, 2007. At the time of submitting affidavit-cum-indemnity for the purpose of endorsement of allottee rights, the complainant had undertaking there he will not claim any delay penalty, compensation or any claim of original customer in future from the OP. The possession was offered to the complainant vide letter dated 18.12.2012 after making payment of Rs.1,98,772/-. The complainant instead of paying this amount sought compensation for delay. To settle the matter, delay penalty credit of Rs.1,86,441/- was issued to the complainant on 30.03.2013. The complainant was asked to take physical possession and to sign the maintenance agreement. The construction had always been ahead of the scheduled target. The area of the flat at the time of entering into agreement was tentative and was subject to final measurements. The original allotment of the area was 1250 sq. yards and at the time of final measurement it came to be 1282 sq. yards and accordingly the revised demand was raised at the original allotment rate. Accounts between the parties already stood settled and the complainant was informed to take possession but the complainant did not come forward. The complainant was further offered registration of the flat on 02.01.2014 but the complainant did not accept the same. Once the offer was made in December, 2012 the complainant was liable to pay the maintenance charges as per agreed terms and conditions. Complainant despite numerous requests did not come forward to take possession of the property. The complainant was already offered possession vide letter dated 29.10.2013 and then in January, 2014. Retention charges were demanded as per the agreement between the parties. Thus, denying any deficiency in service on its part, the OP has sought dismissal of the complaint.
3. To succeed in the complaint, the complainant proved on record affidavit Ex.CW-1/1, and tendered in evidence documents Ex.C-1 to C-15.
4. Evidence of the OP consists of affidavit of Harsh Bhargav, its authorised representative Ex.OP-1/1 and copies of documents Ex.OP-1 and Ex.OP-2.
5. We have heard learned counsel for the parties and have also gone through the written arguments filed by them.
6. The factum of allotment letter and execution of buyers agreement is not disputed between the parties. As per buyers agreement the complainant was to make the payment of the agreed sale consideration of Rs.17,42,500/- as per construction linked plan and the OP was to hand over the possession of the flat to the complainant within 30 months from the date of agreement subject to further extension of six months. Thus, the period of thirty months plus extension of six months thereafter for handing over the possession expired in August, 2010. With regard to the payment of the agreed sale consideration of Rs.17,42,500/-, as per the complainant, the OP has charged Rs.1,26,551/- in excess. The issue raised by the complainant is that there is delay of offer of possession and therefore, the complainant is seeking interest on the deposited amount @ 18% per annum.
Further as per the complainant since he has not been given the possession of the flat in question, therefore, OP is not entitled to raise any demand on maintenance charges and the OP has to refund the excess amount besides payment of interest on the deposited amount.
7. The issue involved whether the complainant is entitled to interest on the deposited amount due to delay in handing over the possession of the apartment. The perusal of record shows that as per agreement, the possession was to be handed over to the complainant on or before August, 2010 and in the event of default in adhering the said time, the OP was to compensate the complainant as per agreement @ Rs.5/- per sq. ft. per month till the handing over of the possession. Once the penalty clause has been duly agreed by the parties, the complainant cannot claim interest on the deposited amount, as prayed for in the complaint. At the most, the complainant is entitled to the benefit of penalty clause 27(d) of the Buyers Agreement duly executed between the parties.
8. Further perusal of Ex.C-3 shows that the complainant was offered the possession of flat by the OP vide letter dated 18.12.2012 and was further asked to make the payment of the remaining amount as per statement of account annexed therewith which clearly shows that the OP has not given the allowance of penalty clause for delayed possession while calculating the amount due shown in the statement of account. However, as per Ex.OP-1 the complainant has been granted the benefit vide credit note dated 30.03.2013 wherein an amount of Rs.1,86,441/- has been credited into the account of the complainant. If that be so, still the OP has failed to show the actual delivery of possession of the flat in question to the complainant till date. Therefore, the complainant is entitled to the benefit of penalty clause of Rs.5/- per sq. ft. per month from 01.04.2013 till the actual handing over of the physical possession of the flat by the OP. However, the complainant in no manner is entitled to interest on the deposited amount.
9. The next question is whether the OP can levy the holding charges @ Rs.5/- per sq. ft. and administrative charges and further execution of sale deed/conveyance deed as per Ex.C-10 dated 02.01.2014 in the event the complainant has not taken the possession of the property offered to him vide letter dated 18.12.2012 Ex.C-3. As observed in Para No.7 and 8 above, since the OP has not delivered the physical possession of the property in question to the complainant till date, therefore, there is no question of levy of holding charges, administration charges, and registration of sale deed/conveyance deed. The issuance of such a letter by the OP without giving the physical possession of the property in question and without obtaining the certificate for occupation and use of the property from the competent authority, to the complainant is an act of unfair trade practice on the part of the OP.
10. Further the issuance of letter dated 18.12.2012 Ex.C-3 accompanied by another letter for signing the maintenance agreement by the nominated maintenance agency M/s. Shanvi Estate Management Service Pvt. Ltd. per se is premature as the complainant has not been offered the physical possession of the property after the completion and occupation certificate having been received by the OP from the competent authority. The issuance of such a letter for maintenance agreement and charges mentioned in the statement of account is an act of unfair trade practice writ large on the part of the OP.
11. Regarding levy of excess amount of Rs. 1,26,551/- beyond the agreed sale consideration of Rs.17,42,500/- is concerned, the OP has taken a categoric stand that the said amount has been levied as the complainant has been provided 1282 sq. ft. upon final measurement as against 1250 sq. ft. as agreed in the buyers agreement/allotment letter. The OP has not produced any evidence to show the delivery of excess area against which the said excess amount has been charged from the complainant. Otherwise also when the physical possession has not been handed over to the complainant till date, as there is nothing on record to show to this effect, the bald plea of the OP is of no help to it while justifying the charging of excess amount. Therefore, the OP has indulged into unfair trade practice in this regard as well.
12. The complainant has, therefore, proved all his grievances except his claim for 18% interest on the deposited amount on account of delay in physical possession of the apartment, against the OP. The complainant is entitled to recover the delayed penalty amount @ Rs.5/- per sq. ft. per month for the total area of 1250 sq. ft. w.e.f 01.04.2013 till the handing over of actual physical possession of the flat in question by the OP.
13. The issuance of offer of defective offer of possession Ex.C-3 accompanied by letter for signing of the maintenance agreement and statement of account showing recoverable amount on account of IFMS and other charges, being against Clause 27 (c) of the buyers agreement, deserves to be recalled by the OP. The complainant is also entitled to refund of Rs.1,26,551/- which has been illegally over charged by the OP.
15. In view of above discussion, the complaint deservs to be allowed and the complaint deserves to be compensated. Hence, the complaint is hereby allowed against with the following directions to the OP;
(a) to pay the sum to be calculated @ Rs.5/- per sq. ft. per month for 1250 sq. ft. w.e.f. 01.04.2013 till handing over the physical possession of the flat in question.
(b) to refund Rs.1,26,551/- (Rs. One lac twenty six thousand five hundred fifty one only).
(c) to recall the letter of defective offer of possession dated 18.12.2012 alongwith other documents
Ex.C-3 (colly).
(b) to pay to the complainant a lump sum compensation of Rs.25,000/- (Rs. Twenty five thousand only) for mental agony, harassment and costs of litigation.
Compliance of this order be made within a period of thirty days from the date of receipt of a certified copy of this order. Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the file be consigned to the record room.
Pronounced.
January 07, 2016.
(Mrs. Madhu P. Singh)
President
(Amrinder Singh Sidhu)
Member
(Mrs. R.K. Aulakh)
Member
