Haryana

StateCommission

A/601/2015

OMAXE LTD. - Complainant(s)

Versus

VIJAY KUMAR SACHDEVA - Opp.Party(s)

MUNISH GUPTA

22 Sep 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeal No  :    601 of 2015

Date of Institution:    16.07.2015

Date of Decision :     22.09.2016

 

M/s Omaxe Limited, 7, Local Shopping Complex, Kalkaji, New Delhi-110019

Also at: Site Office at Omaxe City, GT Road, Near Kumaspur Village, Sonipat

Through its authorised representative namely Sh. Parveen Kumar Gupta, M/s Omaxe Limited, 7, Local Shopping Complex, Kalkaji, New Delhi-110019.

                                      Appellant-Opposite Party

Versus

 

Vijay Kumar Sachdeva son of late Sh. Satpal Sachdeva, Resident of 2209, Gali Hinda Beg, Tilak Bazar, Delhi-110006.

                                      Respondent

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Shri B.M. Bedi, Judicial Member.

                             Shri Diwan Singh Chauhan, Member   

 

Argued by:          Shri Bhupinder Singh, Advocate proxy for Sh. Munish Gupta, Counsel for appellant.

                             Shri Ravi Shankar Garg, Advocate for respondent.

 

                                                   O R D E R

 

B.M. BEDI, JUDICIAL MEMBER

 

          M/s Omaxe Limited–Opposite Party, is in appeal against the order dated May 28^th, 2015 passed by District Consumer Disputes Redressal Forum, Sonipat (for short ‘the District Forum’) in Complaint No.111 of 2014.

2.                Succinctly, the facts of the case as can be gathered from the record are that one Mahesh Dhingra booked a flat with M/s Omaxe Limited-Opposite Party/appellant (hereinafter referred to as ‘the builder’).  He was allotted flat measuring 1100 square feet, bearing No.204, 2^nd Floor, Icon Tower, Omaxe Heights, Omaxe City, Sonipat, vide allotment letter Exhibit CW1/B. The Basic Sale Price (BSP) of the flat was Rs.15,13,200/-. Thereafter, Vijay Kumar Sachdeva-complainant/respondent, purchased the above said flat from Mahesh Dhingra. The builder transferred the flat in the name of complainant-respondent vide Endorsement Form dated 24^th January, 2007 (Exhibit CW1/C), on the same terms and conditions under which the flat was allotted to Mahesh Dhingra. Later the location of the flat was changed to Flat No.204, 2^nd Floor, Tangle Wood Tower, Omaxe City, Sonipat. However, the area of the flat was increased from 1100 Square feet to 1164 Square feet and the builder informed the complainant-respondent in this respect vide letter dated 27.02.2007.

3.                The grievance of the complainant before the District Forum was that he paid the amount of Rs.16,59,102/- as on 27.01.2010 against the BSP of Rs.15,13,200/- but the builder did not execute Flat Buyer’s Agreement and also delayed the offer of possession. The complainant requested the opposite party to deliver possession by writing letters on different dates but instead of offering the possession, the builder demanded Preferential Location Charges (PLC), External Development Charges (EDC) and Infrastructure Development Charges (IDC), to which the builder was not entitled.

4.                The builder sent a letter dated 17.02.2014 (Exhibit CW1/G), wherein the area of the flat was shown 1194 square feet instead of 1164 square feet. The builder raised demand of Rs.8,65,005.94 from the complainant. Besides, the builder demanded Rs.40,000/- as Club Charges, covered parking charges of Rs.1,50,000/- (instead of open parking charges of Rs.75,000/-), Rs.91,615/- EDC/IDC, Rs.29,300/-   as meter cost, Rs.9613/- cost of additional area and Rs.2,08,695/- on account of interest. The complainant stated that the demand so raised by the builder was illegal and was liable to be set aside.

5.                It was prayed that the builder was liable to pay compensation for delay in offering possession from 3/2010 to 3/2014 @ Rs.5/- per square feet per month which comes to Rs.2,86,568/- and thus he was liable to pay Rs.1,24,222/- (8,65,005 – 7,40,783). The builder illegally charged the parking charges, club membership, electric and fire fighting charges, miscellaneous charges, interest free maintenance security and IDC.  Excess area was sold beyond saleable and sanctioned area.  Hence, complaint under Section 12 of the Consumer Protection Act, 1986 was filed before the District Forum.

6.                The opposite party-builder contested the complaint by filing written version. It was stated that the possession letter was sent to the complainant on 17.02.2014 with a request to pay the due amount of Rs.8,65,000.94 and interest of Rs.2,08,695/-, as per the Statement of Account, but the complainant did not pay the amount.  The Directorate of Town and Planning Department, Haryana, Chandigarh, had demanded the payment of EDC, enhanced/revised. It was stated that Enhanced EDC and IDC charges is levied by the Government authorities, so the builder can not interfere in that regard. The complainant did not pay the instalments in time and therefore he was liable to pay interest on the delayed instalments. The complainant paid only Rs.16,65,102/- to the builder and the costs of flat amounts to Rs.23,21,412/- including additional charges. The total cost  of the flat also include the car parking space provided to the customer. The builder whenever raised demand of parking charges, the complainant refused to pay the same vide letter dated 13.10.2009. The builder requested the complainant to pay the amount along with additional charges but he did not bother to pay the same, rather, vide letter dated 21.09.2013, he (complainant) refused to pay the amount. The car parking charges are mandatory for group housing. EDC and IDC charges are levied by the Government authorities. The complainant deliberately and intentionally did not come forward for execution of builder buyer agreement and restrained himself for not making the payment of car parking and other additional charges. Thus, in the absence of agreement, the complainant cannot take the benefit of penalty clause. Thus, denying the averments made in the complaint, it was prayed that the complaint be dismissed.

7.                After evaluating the pleadings and evidence of the parties, the District Forum vide impugned order allowed complaint holding the demand of parking charges and EDC/IDC illegal and set aside the same. The complainant was held liable to pay the club charges to the builder as and when club became ready. The District Forum further observed as under:-

“In our view, after deducting the above said amount from Rs.865005/-, the complainant is only liable to pay Rs.374659/- (excluding parking charges Rs.150000/-, enhanced EDC Rs91651/-, club charges Rs.40000/- & delayed interest Rs.208695/- to the respondent and thus, we direct the complainant to pay the amount of Rs.374659/- to the respondent alongwith interest at the rate of 09% per annum from 26.2.2014 till the delivery of the flat to the complainant.

Similarly, the complainant shall pay Rs.29300/- as meter cost and Rs.9613/- as for additional area to the respondent and the respondent is also directed not to charge any interest on the above said amount.

In our view, the complainant is also entitled to get interest on the amount lying deposited with the respondent since the respondent are utilizing the huge amount of the complainant without providing him any services. Accordingly, we hereby direct the respondent to pay interest at the rate of 09% per annum from 3/2010 till the delivery of possession of the flat by the respondent. The respondent is further directed to execute the buyer agreement with the respondent and to hand over the physical possession of the flat to the complainant.

The complainant by way of present complaint has claimed the compensation to the tune of Rs.10 lacs, which in our view is on a very higher side. However, since the complainant has been able to prove the deficiency in service on the part of the respondent, we hereby direct the respondent to compensate the complainant to the tune of Rs.5000/- (Rs.five thousands) for rendering deficient services, for causing unnecessary harassment and further to pay Rs.5000/- (Rs.five thousands) under the head of litigation expenses.”

8.                Counsel for the parties have been heard. File perused.

9.                It is not disputed that the possession of the flat was offered to the complainant on 17.02.2014, vide letter Exhibit CW1/G. Alongwith the said letter of offer of possession, the builder also annexed ‘Statement of Account’. Except the demand of Rs.2,08,695/-  as interest on account of delayed remittance, the complainant is liable to pay all the amounts. The builder has not led any evidence as to how this amount of Rs.2,08,695/- has been calculated.

10.              In view of the above, the impugned order is modified to the extent that out of the amount of Rs.8,65,005/-, the complainant is liable to pay Rs.6,56,310/- (8,65,005 – 2,08,695) alongwith interest @ 9% per annum from 17.02.2014 i.e. when possession was offered till the amount is paid. Simultaneously, the complainant would be entitled to compensation for the delay in delivery of possession from the agreed date of offering possession till offer of possession i.e. 17.02.2014, as per the agreement.  The amount payable by the builder to the complainant shall be adjusted towards the amount which the complainant is liable to pay to the builder. Thus, after adjusting the amount payable by the builder to the complainant, the complainant shall pay the difference of the amount to the builder alongwith interest @ 9% per annum from the date of offer of possession i.e. 17.02.2014 till the date of payment.

11.              The impugned order is modified in the manner indicated above and the appeal stands disposed of accordingly.

 

Announced 22.09.2016

(Diwan Singh Chauhan) Member

(B.M. Bedi) Judicial Member

(Nawab Singh) President

CL