Haryana

StateCommission

A/460/2016

RAHUL KUMAR - Complainant(s)

Versus

EMAAR MFG LAND LTD. - Opp.Party(s)

ARTI BANSAL

31 Jul 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeal No  :      460 of 2016

Date of Institution:      23.05.2016

Date of Decision :       31.07.2017

 

Rahul Kumar s/o Sh. Sharat Kumar, Resident of B-5/22, 1^st Floor, Safdarjung Enclave, New Delhi-110029.

                                      Appellant-Complainant

Versus

Emaar MGF Land Limited:

(a)     ECE House, 28, Kasturba Gandhi Marg, New Delhi-110001.

(b)     Emaar MGH Business Park, Mehrauli-Gurgaon Road, Sikandarpur Chowk, Sector-28, Gurgaon-122002 (Haryana).

 

                                      Respondent-Opposite Party

 

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

                             Mr. Balbir Singh, Judicial Member.

                                                                                                         

Argued by:          Shri Rahul Kumar-appellant in person.

                             Shri Shekhar Verma, Advocate for respondents.

 

                                                   O R D E R

 

BALBIR SINGH, JUDICIAL MEMBER

 

        This appeal has been preferred against the order dated April 12^th, 2016 passed by District Consumer Disputes Redressal Forum, Gurgaon (for short ‘the District Forum’) whereby complaint was dismissed.

2.                Initially Unit No.EFP-24-0501, 5^th Floor, Emerald Floors, Premier, Emerald Estate, Sector-65, Urban Estate, Gurgaon, Haryana, was allotted to Mrs.Anupama Asthana and Mr. Sudhir Asthana by Emaar MGF Land Limited – Opposite Party (respondent herein). A Buyer’s Agreement was executed on April 09^th, 2010 in between the original allottees and the opposite party. Thereafter, allotment of this unit was transferred by way of nomination in favour of Mrs. Sudesh Sud and R.K. Kapoor and thereafter on August 02^nd, 2011 the allotment was transferred in favour of Rahul Kumar-complainant (appellant herein) by way of nomination by Sudesh Sud and R.K. Kapoor. As per Clause 11 of the Buyer's Agreement, possession of the unit was to be delivered to the allottee after completion of construction within 36 months from April 09^th, 2010, that is, the date of execution of the buyer’s agreement.

3.                As per terms and conditions of the buyer’s agreement, the opposite party was also entitled to grace period of three months for applying and obtaining the completion certificate and occupation certificate in respect of the above said unit. The opposite party failed to complete construction and deliver possession of the unit within the stipulated period, although the complainant made payment of installments of the sale price amount regularly in time. The opposite party induced the complainant by offering Early Payment Rebate (EPR) scheme with interest at the rate of 12% per annum. The EPR scheme was offered on all the payments received in advance in between September 22^nd, 2011 to December 31^st, 2011. Under this scheme, the complainant made early payment of Rs.5,44,000/- and Rs.47,10,780/- in the month of September, 2011. Above mentioned payment was made by the complainant with the hope that the opposite party will be able to deliver possession of the unit well within time on receiving advance payment. After receiving the above mentioned amount, the complainant was informed by the opposite party that advance payment of the amount has been received and the complainant has earned early payment rebate relief of an amount of Rs.5.00 lacs approximately as on April 09^th, 2014. The opposite party neither made payment of the EPR amount nor adjusted that payment in the Basic Sale Price of the unit. The opposite party desired to adjust EPR amount in the last installment of the Basic Sale Price.  The complainant has taken plea that apart from it, the opposite party is also liable to pay compensation to the complainant regarding causing delay in delivery of possession at the rate of Rs.5/- per Sq. ft. per month of the super area till the date of issuance of notice of possession.  Thus, the complainant has alleged that it is a clear case of deficiency in service on the party of the opposite party.

4.                The complainant has prayed that rate of interest to be paid by the complainant to the opposite party and to be paid by the opposite party to the complainant-allottee should be at par. It is also pleaded that the opposite party be directed to adjust an amount of Rs.5.00 lacs earned by the complainant as EPR along with up to date interest at the same rate as the opposite party is entitled to receive on delayed payments, if any, made by the buyers as per the agreement. The opposite also be directed to pay to the complainant an amount of Rs.7,50,000/- as compensation on account of un-necessary harassment and mental agony.

5.                The opposite party in its written version has taken plea that the complaint is not maintainable in the present form and that the complainant is stopped from filing the present complaint by his own acts and conduct. It is an admitted fact that unit bearing No.EFP-24-0501, 5^th Floor, Emerald Floors, Premier, Emerald Estate, Sector-65, Urban Estate, Gurgaon, Haryana, was initially allotted to Mrs.Anupama Asthana and Mr. Sudhir Asthana by the opposite party.   A Buyer’s Agreement was executed on April 09^th, 2010. The unit was thereafter, transferred by way of nomination in favour of Mrs. Sudesh Sud and R.K. Kapoor and ultimately thereafter the unit was transferred by way of nomination in the name of complainant on August 02^nd, 2011. As per terms and conditions of the buyer’s agreement, the opposite party proposed to hand over possession of the flat in question within a period of 36 months from the date of execution of the agreement. It is also admitted fact that the opposite party had offered an Early Payment Rebate (EPR) to all its customers including the complainant but it is denied that the complainant was induced under EPF scheme to make benefit of advance payment of the amount. The customers were given option if they wanted to make advance payment under the above mentioned EPR scheme. The EPR scheme is not related in any manner with the date of completion of the project and handing over possession of the unit. The payment made by the complainant is a matter of record. In case the complainant had fulfilled the terms and conditions of the EPR scheme, he was entitled to the benefit of that scheme in accordance with the terms and conditions of the scheme. If the complainant is found to be entitled to the benefit of EPR scheme, the same shall be accumulated and credited against the Basic Sale Price in the last installment or earlier demands if the last demand is not sufficient to offset the Early Payment Rebate as per terms and conditions of the scheme. The opposite party has stated that the complainant is not entitled to receive any amount as claimed in the complaint and prayed that the complaint be dismissed.

6.                Parties led evidence in support of their respective claims before the District Forum.

7.                After hearing arguments, vide impugned order dated April 12^th, 2015 passed by the learned District Forum, complaint filed by the complainant was dismissed.

8.                Aggrieved with the impugned order dated April 12^th, 2015, the complainant-appellant has filed the instant appeal with the prayer to set aside the impugned order dated April 12^th, 2015 and to grant relief as claimed in the complaint.

9.                We have heard the appellant in person and Shri Shekhar Verma, learned counsel for the respondent and perused the case file.

10.              It is an admitted fact that initially flat unit No.EFP-24-0501, 5^th Floor, Emerald Floors, Premier, Emerald Estate, Sector-65, Urban Estate, Gurgaon, with super area 183.48 Square Mtrs. as mentioned in the complaint was allotted to Mrs. Anupama Asthana and Mr. Sudhir Asthana and thereafter Buyer’s Agreement (Annexure R-5) was executed in between the original allottees and the opposite party on April 09^th, 2010. It is also admitted fact that after execution of the Buyer’s Agreement, the above mentioned flat was transferred by way of nomination in favour of Mrs. Sudesh Sud and R.K. Kapoor.  Later on the flat unit in question was transferred by way of nomination by Mrs. Sudesh Sud and R.K. Kapoor in favour of the complainant on August 09^th, 2011.  Affidavit Annexure R/3 was executed in this regard by Rahul Kumar-complainant and a letter written on behalf of transferee regarding this transaction is Annexure R/2.  It is also admitted fact that the complainant used to make payment of the sale price amount as per Construction Linked Payment Plan.

11.              The complainant did not make default in payment of any installment. It is also an admitted fact that the opposite party offered Early Payment Rebate to all the customers including the complainant mentioning rebate at the rate of 12% per annum. It is evident from the letter (Annexure R/6) that the EPR at the rate of 12% per annum is only valid for all payments received in advance between July 01^st, 2012 and September 30^th, 2012. It is also mentioned that the aforesaid EPR credit will be accumulated and adjusted for the allottees against the Basic Sale Price in the last installment or earlier demands, if last demand is not sufficient to offset the EPR/OTPR accumulations. It is also admitted fact that under the aforesaid EPR scheme, an amount of Rs.5,44,000/- and an amount of Rs.47,10,780/- was deposited by the complainant with the opposite party as advance payment in the month of September, 2011. It is also an admitted fact that the opposite party informed the complainant and confirmed receipt of the above said amount and that the complainant has earned early payment rebate amounting to Rs.5.00 lacs as on April 09^th, 2014. Despite accumulation of EPR amount Rs.5.00 lacs being interest of the above mentioned amount, the opposite party neither paid that amount to the complainant nor adjusted that amount in the basic sale price to be paid by the complainant saying that the EPR amount shall be adjusted at the time of payment of the last installment of the basic sale price considering terms and conditions mentioned in the letter Annexure R/6.

12.              Although, considering terms and conditions mentioned in the letter Annexure R/6, EPR credits were to be accumulated and adjusted as payment of the basic sale price of the unit in the last installment but the problem arose as the opposite party is intentionally avoiding to raise demand of the last installment regarding payment of the basic sale price amount. As per terms and conditions of the buyer’s agreement Annexure R/5, as mentioned in Clause 11, the opposite party was required to deliver possession of the flat/unit to the complainant after completion of the construction and other development works within a period of 36 months from the date of execution of the buyer’s agreement. A three months grace period was given for applying and obtaining the completion certificate and occupation certificate. In this way, as per terms and conditions mentioned in the buyer’s agreement, the opposite party was required to deliver possession of the flat to the complainant on or before April 09^th, 2013 after receiving total sale price amount. As per Construction Linked Payment Plan and terms and conditions mentioned in the buyer’s agreement, in fact, the complainant was required to make payment of the total basic sale price amount prior to obtaining possession of the flat unit. As per terms and conditions, the complainant was required to make payment of the total sale price amount before date of delivery of possession which is April 09^th, 2013. But till now possession has not been delivered to the complainant.

13.              As per version of the complainant, the opposite party intentionally is causing delay in receiving the last installment regarding payment of the sale price amount. The complainant was willing and ready to make payment of the total sale price amount prior to April 09^th, 2013 but the payment of the same could not be made as the opposite party did not send any letter to the complainant to make payment of the last installment intentionally. Now in this situation, if the complainant does not raise any objection, the EPR credit amount Rs.5.00 lacs shall remain with the opposite party and the opposite party will be able to use that amount of Rs.5.00 lacs in its business interest free. Admittedly, the complainant had earned EPR credits as on April 09^th, 2014 as Rs.5.00 lacs. The prayer of the complainant is that the interest amount regarding the above mentioned advance payment made by the complainant which is calculated as EPR credits as Rs.5.00 lacs, should have been adjusted as payment of the basic sale price with effect from April 09^th, 2014 and as the opposite party could not get adjustment of the above mentioned amount of Rs.5.00 lacs in the basic sale price, the complainant is entitled to receive interest at the rate of 24% per annum. In our view, prayer of the complainant appears to be justified. If there is no interference by this Commission, certainly the opposite party will be able to use the above mentioned amount of Rs.5.00 lacs interest free in its business. It appears that the opposite party is not issuing instructions to make payment of the last installment of the basic sale price amount intentionally so that the accumulated EPR credit amount of the complainant as well as other customers may be used by the opposite party interest free. It appears that the opposite party is using clever tactics to earn more profits and to cause intentional losses to the complainant and other customers. In these circumstances, it will be justified to direct the opposite party to adjust the above mentioned amount of Rs.5.00 lacs being EPR credits as payment in the basic sale price to be paid by the complainant as soon as possible. We also feel that it will be justified to direct the opposite party to make payment of interest on this amount of Rs.5.00 lacs at the rate of 12% per annum w.e.f. April 09^th, 2014 till the above mentioned amount is adjusted in the payment of the basic sale price of the flat/unit.

14.              As per discussions above in detail, we have no hesitation in making observations that the District Forum has committed an error while passing the impugned order dated April 12^th, 2016 and dismissing the complaint filed by the complainant. It will be pertinent to mention here that in this case, the complainant neither has prayed for refund of the total amount deposited by him being sale price of the flat/unit nor has prayed for early delivery of possession of the unit. So, much discussion is not needed in this regard and to grant any more relief to the complainant in this case.

15.              In view of the above, the appeal is accepted, the impugned order dated April 12^th, 2016 passed by the learned District Forum is set aside and complaint filed by the complainant is accepted directing the opposite party to adjust the Early Payment Rebate credit amount of Rs.5.00 lacs towards payment of the basic sale price amount as soon as possible.  The opposite party is also directed to pay to the complainant interest on the above mentioned amount of Rs.5.00 lacs at the rate of 12% per annum with effect from April 09^th, 2014 till the total amount mentioned above is adjusted. The opposite party is also directed to make payment of an amount of Rs.11,000/- as litigation expenses.

 

Announced: 31.07.2017

(Balbir Singh) Judicial Member

(Nawab Singh) President

 

CL