Haryana

StateCommission

A/704/2016

OMAXE LTD. - Complainant(s)

Versus

HIRA LAL MITTAL - Opp.Party(s)

MUNISH GUPTA

16 May 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, Panchkula

                                                 

First Appeal No  :      704 of 2016

Date of Institution:      01.08.2016

Date of Decision :      16.05.2017

 

M/s Omaxe Limited, Registered Officer: 7, Local Shopping Centre, Kalkaji, New Delhi-110019 through its authorized representative namely Shri Dheeraj Sharma, M/s Omaxe Limited, 7 Local Shopping Centre, Kalkaji, New Delhi-110019. 

                                      Appellant-Opposite Party

 

Versus

 

Hira Lal Mittal son of late O.P. Mittal, Resident of House No.885, Sector 14, Hisar, Tehsil and District Hisar.

                                      Respondent-Complainant

 

 

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

                             Mr. Balbir Singh, Judicial Member.

 

Argued by:          Shri Bhupinder Singh, Advocate for appellant.

                             Shri K.C. Singla, Advocate for respondent.

 

O R D E R

 

BALBIR SINGH, JUDICIAL MEMBER

 

          This appeal has been preferred against the order dated May 16^th, 2016 passed by District Consumer Disputes Redressal Forum, Jhajjar (for short ‘the District Forum’) in Complaint No.178 of 2014.

2.                Hira Lal Mittal-complainant and his wife Smt. Romi Mittal were allotted a flat bearing No.101, 1^st Floor in Sears Towers of the North Avenue, Bahadurgarh by M/s Omaxe Limited-Opposite Party office at 7 Local Shopping Centre, Kalkaji, New Delhi after the allottees deposited initial booking amount of Rs.5,09,687/- vide receipt dated 10^th May, 2007. The tentative total sale price of the flat was Rs.24,72,187.50 and a buyer’s agreement was executed in between the allottees as well as opposite party on 27^th January, 2007. In the buyer’s agreement the tentative sale price including power back up, preferential location charges, external development charges, open car parking and club membership charges etc. were mentioned as Rs.25,14,125/-. The project was to be completed within a period of 30 months from 27^th November, 2007 up to 27^th May, 2010. As and when demand was raised by the opposite party, the complainant deposited total amount of Rs.23,18,843.80  till 4^th May, 2011.  On 6^th November, 2012, the opposite party gave assurance that project was likely to be completed up to Diwali festival.

3.                The opposite party offered possession of the flat on 23^rd January, 2013 mentioning increase in the cost from Rs.25,14,125/- to Rs.27,58,295.85 mentioning that there was increase in the area of the flat and some amount was added mentioning as podium charges, electricity meter charges and interest regarding delayed payment. The complainant also deposited an amount of Rs.1,77,898/-  on 4^th February, 2013. In this way, the complainant deposited total amount of Rs.24,96,741.80. The opposite party increased podium charges Rs.63,914.70, mentioning total podium charges as Rs.1,51,267.05 in place of Rs.87,382.35. In fact, as per terms of the agreement, the complainant is not liable to pay podium charges. Now the opposite party is mentioning total amount to be paid by the complainant as Rs.27,97,189.55 whereas it should have been mentioned as Rs.26,12,110.25. The complainant is also entitled to receive delayed charges amounting to Rs1,51,098.90 against Rs.2,06,380/- regarding a period of 34 months. In this way, the opposite party is raising demand of an amount of Rs.3,91,459.30 over and above the agreed cost. The complainant found that as on 26^th October, 2013 also the flat was not ready for delivery of possession as toilets seats; water taps etc are not fitted.

4.                It is prayed that the opposite party be directed to deliver possession of the flat at the earliest and to waive of an amount of Rs.3,91,459/- and Rs.20,000/- as litigation expenses as demanded by the opposite party and to allow interest to the complainant on the amount already deposited till the possession is delivered. It is also prayed that the opposite party be directed to pay an amount of Rs.10,28,109.30 as compensation as on 31.08.2014  with future interest; an amount of Rs.8.00 lacs as compensation on account of un- necessary harassment and Rs.20,000/- as litigation expenses.

5.                The Opposite Party in its written version has taken plea that the complaint is not maintainable in the present form as Mrs. Romi Mittal has not been impleaded as party to the proceedings of the complaint; that the complainant is not covered under the definition of ‘consumer’ as he has not purchased this flat for residential purpose because he has his own residential house at Hisar; that the matter in dispute is liable to be settled by appointment of an arbitrator as mentioned in Clause 49 of the agreement; that the District Forum has no territorial and pecuniary jurisdiction to decide this complaint. It is also pleaded that the complainant is not entitled to receive any interest from the opposite party. It is provided under Clause 28(a) of the buyer’s agreement that in case of delay on the part of the opposite party in delivery of possession of the flat, the opposite party is liable to pay compensation at the rate of Rs.5/- per square feet per month for super area to the complainant.  Moreover, in case if there is delay for obtaining possession on the part of the complainant, the opposite party also can charge from the complainant at the rate of Rs.5/- per square feet per month, as holding charges, as provided under Clause 28 of the buyer’s agreement.  Moreover, if delivery of possession is offered by the opposite party as per terms of the agreement, the allottee shall be deemed to have taken possession of the said flat on expiry of 30 days of offer of possession for the purpose of payment of applicable maintenance charges in terms of Clause 34(a) of the agreement, from that date, the opposite party is entitled to recover maintenance charges also.

6.                As per version of the opposite party, there was increase in amount claimed due to this reason also as the area of the flat was increased from 1165 square feet to 1214 square feet. The area and cost of the flat at the time of booking was tentative and was subject to be charged on actual area at the time of offer of possession.  Moreover, the delay in completion of the project and delivery of possession was as the complainant like few other allottees did not make payments of the instalments in time. The complainant also caused delay in making payment. In these circumstances, the complainant is not entitled to receive interest. The opposite party issued demand letters to the complainant on 09.03.2009, 15.01.2010, 06.10.2010 and 23.04.2011.

7.                When on 23.01.2013 possession was offered to the complainant requiring him to pay the remaining amount of Rs.4,61,633.12, the complainant made payment of only an amount of Rs.1,77,898/- on 04.02.2013. In this situation, the opposite party issued letters dated 6^th March, 2013, 6^th April, 2013 and 11^th July, 2013 offering possession after making payment of the remaining amount mentioning that the letters issued by the complainant dated 4^th February, 2013 and 17^th February, 2013 are wrong. It is denied that the complainant paid an amount of Rs.24,96,714.80 against the due amount as Rs.24,06,730.25 (cost amount of Rs.26,12,110.25 –Rs.2,06,380 as penalty). It is denied that the complainant deposited an amount of Rs.91,011.55 in excess. It is pleaded that in fact total cost of the flat is Rs.27,97,189.55, out of which the complainant has paid only an amount of Rs.24,82,588.02 and is liable to pay the remaining amount of Rs.3,49,397.72. It is denied that toilet seats, water taps and windows etc. have not been properly fitted. The complainant is entitled to pay up to date interest upon the above mentioned amount w.e.f. 23.01.2013 along with maintenance charges. It is prayed that the complaint be dismissed.

8.                The parties led evidence in support of their respective claims.

9.                After going through the pleadings and evidence of the parties, the District Forum vide impugned order dated 16^th May, 2016 allowed complaint filed by the complainant and directed the opposite party to deliver possession of the flat to the complainant as soon as possible and to receive payment as Preferential Location Charges (PLC) as Rs.1,03,038.85 instead of Rs.1,06,225/-; an amount of Rs.5,000/- as cost of electricity meter instead of Rs.30,000/-; to consider total Basic Sale Price (BSP) as Rs.20,60,765/- instead of Rs.20,63,337.50. Direction was also given to pay an amount of Rs.1,88,170/- to the complainant on account of 31 months delay in offering the delivery of possession of flat at the rare of Rs.5/- per Sq. yard per month and interest at the rate of 9% per annum on the total amount deposited up to 5^th February, 2014, from that date till the possession is delivered. The complainant was also allowed an amount of Rs.10,000/- on account of un-necessary harassment and mental agony and an amount of Rs.5500/- as litigation expenses. Findings were also given by the learned District Forum that as per terms of the agreement, the opposite party is not entitled to receive podium charges. The opposite party shall issue fresh statement of account within a period of 30 days from the date of order as per findings given above.

10.              The complainant did not prefer to file appeal against the order passed by the learned District Forum and he appears to be satisfied with the order.

11.              We have heard learned counsel for the parties and perused the case file.

12.              Admittedly, a flat bearing No.101, 1^st Floor in Sears Towers of the North Avenue, Bahadurgarh project was allotted in the name of complainant Hira Lal Mittal and his wife Smt. Romi Mittal, vide allotment letter Exhibit P-4. A buyer’s agreement, Exhibit P-5, was executed in between the allottees as well as the opposite party on 27^th November, 2007. At the time of allotment, tentative area of the flat was mentioned as 1165 Sq. ft. which was later on revised to 1214 Sq. ft. As per terms and conditions of the agreement, the allottees are legally bound to pay cost of enhanced area of the flat.

13.              A letter dated 23^rd January, 2013 (Exhibit P-8) offering delivery of possession to the allottees was issued by the opposite party on 23^rd January, 2013 subject to payment of total balance amount of Rs.4,61,633.12. Admittedly, the complainant deposited an amount of Rs.1,77,898/- as is clear from letter Exhibit P-9 and raised an objection regarding liability to make payment of the remaining amount by the complainant. The balance amount to be paid by the allottees is mentioned as Rs.4,61,633.12 in the statement of account, Annexure-A, attached with letter Exhibit P-8. Statement of account is reproduced below:-

Particulars	Amount (In Rs.)
A)
(i) Net Basic Sale Price	20,63,337.50
(ii) Additional
-Open Car Parking	75,000.00
-Interest Free Maintenance Security	60,700.00
-Electrical Equipment Cost and Fire                Fighting Equipment Cost	48,560.00
-Club Cost	40,000.00
-Power Backup Equipment Cost	40,000.00
(iii)  PLC
-PLC	1,06,225.00
(iv)  EDC
-External Development Charges	1,82,100.00
(v)  Other Cost
-Podium Charges (PC)	87,382.35
-Master Cost	30,000.00
Total (I+II+IV+V)	27,33,304.85
B)   Interest on account of delayed remittance	24,991.00
Grand Total (A+B)	27,58,295.85
C)   Received Amount	23,09,750.56
Balance Due (A+B+C)	4,48,545.29
Service Tax	13,087.83
Grand Total	4,61,633.12
Cheque amount RCVD (under realization)	0.00

 

14.              Learned District Forum in its order dated 16^th May, 2016 has given findings differently from the amount claimed by the opposite party mentioned in the statement of account, Annexure-A, regarding few payments and liabilities. Flat measuring 1165 Sq. ft. was allotted in the name of complainant and his wife mentioning basic sale price at the rate of Rs.1165/- per Sq. ft.  Admittedly, the super area of the flat was increased from 1165 Sq. ft to 1214 Sq. ft.  Regarding the increased super area amount was charged at the rate of Rs.1750/- per Sq. ft. Under Clause 7 of the agreement, Exhibit P-5, it is provided that if the extended area of the flat is within 10% of the original booking area, the allottee is liable to make payment of the increased area at the same rate on which the flat was allotted. Learned District Forum gave findings that the basic sale price of the flat measuring 1214 Sq. ft. should be calculated at the rate of Rs.1697.50 which was at the time of allotment of the flat. Learned District Forum gave findings that net basic sale price of the flat should be considered as Rs.20,60,765/- instead of Rs.20,63,337.50. In view of Clause 7 of the buyer’s agreement (Exhibit P-5), the findings of the learned District Forum in this regard are justified and stands affirmed.

15.              Learned District Forum has also given findings that in view of the changes in the net basic sale price as calculated above, the opposite party is entitled to receive preferential location charges amount only to the tune of Rs.1,03,038.25 instead of Rs.1,06,225/-, as mentioned in the statement of account, Annexure-A. The findings of the learned District Forum regarding preferential location charges also stands affirmed as the same has been calculated being 5% of the net basic sale price as per terms and conditions of the buyers agreement.

16.              Similarly, in the statement of account, Annexure-A dated 23^rd January, 2013, the total amount under the heading Podium Charges, has been claimed by the opposite party as Rs.87,382.35.  Thereafter, again another statement of account ‘Annexure-A’ dated 6^th March, 2013, attached with letter Exhibit P-11, was issued by the opposite party. In this document, the total amount claimed as Podium Charges is mentioned as Rs.1,51,267.05.  In this way, the opposite party has shown increase in Podium charges as Rs.63,884.70.  In fact, in the buyer’s agreement Exhibit P-5, nothing is mentioned regarding podium charges. As nothing was mentioned regarding podium charges in the buyer’s agreement, learned District Forum has given findings that the opposite party is not entitled to receive total podium charges amount as Rs.1,51,267.05, as mentioned in the statement of account dated 6^th March, 2013, Annexure-A attached with letter Exhibit P-11.  We have also closely perused the buyer’s agreement. Nothing is mentioned in the agreement regarding claim of podium charges. The opposite party did not adduce any other document regarding its claim of podium charges amount, as mentioned above. In these circumstances, we find no illegality and invalidity in the findings of the learned District Forum that the opposite party is not entitled to receive any amount, as podium charges. Findings of the learned District Forum in this regard also stands affirmed.

17.              In the statement of account (Annexure-A) dated 23^rd January, 2013 as well as dated 6^th March, 2013 (Annexure-A), cost of the electricity meter, amount claimed is mentioned as Rs.30,000/-. In fact, the complainant as well as the opposite party did not adduce any evidence regarding the amount spent for providing electricity meter. The opposite party which has provided the electricity meter, has also not adduced in evidence any bill, receipt or any other document to prove that an amount of Rs.30,000/- was spent for providing electricity meter. Burden to prove regarding cost of the electricity meter was upon the opposite party. As the opposite party could not produce any evidence to prove cost of electricity meter, there is no reason to change findings of the learned District Forum regarding assessment of cost of electricity meter as Rs.5,000/-. The complainant has no objection of any type if the cost regarding providing the electricity meter is assessed as Rs.5,000/-. Accordingly, findings of the learned District Forum in this regard also stands affirmed.

18.              As provided under Clause 28 (a) of the buyer’s agreement (Exhibit P-5), construction and other development work of the flat was to be completed within a period of 30 months from the date of agreement i.e. 27^th November, 2007. In this way, the construction and development work was to be completed up to 27^th May, 2010. In case of force majeure condition, there is a relaxation of six months more.

19.              Under Clause 28(b) of the buyer’s agreement, it is also provided that the company (opposite party) shall not be held responsible or liable for not performing any of its obligations or undertakings provided for in this agreement if such performance is prevented, delayed or hindered by act of God, fire, flood, explosion, war, riot, terrorist acts, sabotage, inability to procure or general shortage of energy and labour etc.  The opposite party could not adduce any evidence to prove that the company/opposite party could not complete construction work due to force majeure conditions, as mentioned above. In fact, except an affidavit (Exhibit R-1) of Pankaj Karnatak, an authorised representative of the opposite party, no other evidence has been adduced by the opposite party in this case.  During the course of arguments, learned counsel for the opposite party has urged that construction could not be completed in time as payment of instalments was not made in time by the complainant and other allottees. In our view, the complainant cannot be blamed if other allottees did not make payment of the instalments in time. Regarding causing delay in payment of instalments by the complainant and his wife, the opposite party did not adduce any evidence. Only in the written version of the opposite party, there is mention regarding issuance of demand letters dated 09.03.2009, 15.01.2010, 06.10.2010 and 23.04.2011 but certified copies of those letters have also not been tendered in evidence. In these circumstances, findings cannot be given that the delay of 31 months regarding offering delivery of possession was caused due to any fault on the part of the complainant and his wife as well as due to force majeure conditions.

20.              Keeping in mind all these circumstances, learned District Forum has correctly given findings that legally and technically as per terms and conditions of the buyer’s agreement, the opposite party was required to hand over possession of the flat after completion of construction and other development works up to 27^th May, 2010. Letter Exhibit P-8 was issued on 23^rd January, 2013 offering delivery of possession subject to payment of the balance amount, as mentioned in statement of account Annexure-A, after more than a period of 31 months from 27^th May, 2010, the date fixed for delivery of possession of the flat after completion of construction and other development works, as per terms of the agreement.  

21.              Learned District Forum has given findings that the complainant and his wife are entitled to receive an amount of Rs.1,88,170/- from the opposite party as penalty regarding causing delay in offering possession of the flat at the rate of Rs.5/- per Sq. ft per month, as provided under Clause 28(f) of the buyer’s agreement (Exhibit P-5).  Under Clause 28(f), it is mentioned that if the delay is on the part of the company (opposite party), the opposite party is liable to pay penalty at the rate of Rs.5/- per Sq. yard per month and in case of delay regarding obtaining possession or making payment is on the part of allottee, in that eventuality, the opposite party is entitled to receive penalty at the same rate. Keeping in mind, as 31 months delay was caused due to faults of the opposite party, the findings given by the learned District Forum that the complainant is entitled to receive an amount of Rs.1,88,170/-, as penalty, are valid, justified and stands affirmed.

22.              After receiving letter offering delivery of possession of the flat (Exhibit P-8) alongwith statement of account on 23^rd January, 2013, the complainant deposited only an amount of Rs.1,77,898/- out of the total balance amount of Rs.4,61,633.12. Thereafter, the complainant had written a letter (Exhibit P-9) on 4^th February, 2013 to the opposite party raising objection regarding payment of the remaining balance amount. In that letter, the complainant gave assurance to make payment of the remaining amount, if any, subject to providing the correct figure of balance amount after proper calculation mentioning that the complainant is not liable to pay interest amount. Thereafter, the complainant issued another letter Exhibit P-10 dated 17^th February, 2013 and letter Exhibit P-12 dated 18^th March, 2013. Despite issuance of these letters, the opposite party did not provide correct figure of the balance amount after considering the objection raised by the complainant in the above mentioned letters. In document Annexure-A attached with letter Exhibit P-8 as well as Annexure-A attached with letter Exhibit P-11, the opposite party claimed an amount of Rs.25,075/- as interest. As the opposite party could not produce any documentary evidence to prove that delay was caused by the complainant in making payment of the instalments of the sale price amount, the opposite party is not entitled to interest amount of Rs.25,075/-, as mentioned in Annexure-A attached with Exhibit P-11.

23.              In fact, after depositing an amount of Rs.1,77,898/-  on 4^th February, 2013, the complainant had written the above mentioned letters to the opposite party time and again to provide him correct figure regarding balance amount raising some dispute regarding the amount mentioned in Annexure-A attached with Exhibit P-11.  Despite that, the opposite party did not provide the correct figure of the balance amount. As per discussions above in detail and findings given by the learned District Forum while passing the impugned order, it is clear that figure of the balance amount claimed in ‘Annexure-A’ was not correctly mentioned. The amount claimed by the opposite party was excessive. In fact, the complainant could not make payment of the remaining balance amount, if any, as the amount claimed was excessive and due to this reason the opposite party did not agree to deliver possession of the flat to the allottees.

24.              As per discussions above in detail, we feel that there must not be any hesitation in holding that all it happened mainly due to faults on the part of the opposite party. It is not uncommon that generally builders use such like clever tactics to grab more money from the allottees more particularly at the time of offering delivery of possession. Keeping in mind all these circumstances, learned District Forum has awarded interest in favour of the complainant to be paid by the opposite party at the rate of 9% per annum from 4^th February, 2013 when letter Exhibit P-9 was issued by the complainant and payment of an amount of Rs.1,77,898/- was made to the opposite party. Keeping in mind the above mentioned circumstances, the findings of the learned District Forum appears to be valid and justified. So, the findings of the learned District Forum in this regard also stands affirmed holding that the complainant is entitled to interest at the rate of 9% per annum regarding the total amount deposited up to 4^th February, 2013 till the possession is delivered. It will be pertinent to mention here that in the letter of offer of delivery of possession Exhibit P-8 also it is not mentioned that the project is complete and only it is mentioned that the development of the aforesaid project is in verge of completion.

25.              This fact cannot be overlooked that the complainant had to face un-necessary harassment, hardship and monetary losses due to this litigation by appearing time and again in the office of the opposite party as well as in the court proceedings. Learned District Forum has awarded an amount of Rs.25,000/- as compensation on account of un-necessary harassment and mental agony as well as an amount of Rs.5500/- as litigation expenses. Keeping in mind the facts and circumstances of this case, findings of the learned District Forum regarding awarding compensation amount as well as litigation expenses, mentioned above, are justified and stand affirmed. No other point was raised at the time of arguments.

26.              To sum up, findings are given that the correct basic sale price of the flat after increase in area is to be considered as Rs.20,60,765/- instead of Rs.20,63,337.50. The correct figure of preferential location charges is to be considered as Rs.1,03,038.85 instead of Rs.1,06,225/-, as mentioned in Annexure-A attached with letter dated 6^th March, 2013 (Exhibit P-11). Similarly, the allottees shall not be liable to pay the podium charges total amounting to Rs.1,51,267.05,  as mentioned in Annexure-A attached with Exhibit P-11.  The claim of the opposite party regarding cost of the electricity meter is to be considered as Rs.5,000/- instead of Rs.30,000/-, as mentioned in Annexure-A. Apart from it, the complainant shall be entitled to receive an amount of Rs.1,88,170/- as penalty on account of 31 months delay in offering possession of the flat and the complainant is entitled to receive interest at the rate of 9% per annum on the amount of Rs.24,82,588.02, already paid, with effect from 5^th February, 2013. It is also held that the complainant is entitled to receive an amount of Rs.10,000/- as compensation on account of un-necessary harassment and mental agony as well as an amount of Rs.5500/- as litigation expenses.

27.              As per findings given by the learned District Forum as well as by this Commission in this order, as mentioned above, the opposite party shall make correction regarding the amount claimed from the allottees regarding purchase of flat No.101, 1^st Floor, in Sears Towers of the North Avenue, Bahadurgarh and shall issue a fresh statement of account claiming the balance amount, if any, within a period of one month from the date of receipt of certified copy of this order. After adjustment of the amount paid and balance amount which is less or excessive, the opposite party shall deliver possession of the flat after completion of construction and development work in the project.  In case the possession is not delivered as per directions in this order, the complainant shall be within his right to recover interest at the rate of 9% per annum till actual physical possession of the flat is delivered. With these findings, we find no merit in the appeal and the same stands dismissed.

28.              The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the complainant against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.

 

Announced: 16.05.2017

(Balbir Singh) Judicial Member

(Nawab Singh) President

 

CL