Chandigarh

DF-II

CC/519/2014

Krishan Gopal - Complainant(s)

Versus

M/s Emaar MGF Land Ltd. - Opp.Party(s)

Amit Arora, Adv.

23 Feb 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Consumer Complaint  No	:	519 of 2014
Date  of  Institution	:	07.10.2014
Date   of   Decision	:	23.02.2016

 

 

 

 

 

1]  Krishan Gopal s/o Sh.Muni Lal,

 

2]  Seema Dhingra W/o Krishan Gopal,

 

    Both residents of H.No.2411, Sector 39-C,   Chandigarh.

 

 

             …..Complainants

Versus

 

1]  M/s Emaar MGF Land Limited having its registered office at ECE House, 28, Kasturba Gandhi Marg, New Delhi through its Director.

 

2]  M/s Emaar MGF Land Limited, having its Branch Office at SCO No.120-122, First Floor, Sector 17-C, Chandigarh through its Zonal/Branch Manager.

  

….. Opposite Parties

 

BEFORE:  SH.RAJAN DEWAN                 PRESIDENT

         SH.JASWINDER SINGH SIDHU       MEMBER

         MRS.PRITI MALHOTRA             MEMBER

 

 

For complainant(s)      :     Sh.Amit Arora, Advocate.

 

For Opposite Party(s)   :     Sh.Sanjeev Sharma, Advocate

 

 

PER PRITI MALHOTRA, MEMBER

 

 

          As per the case, the Complainant had entered into a Plot Buyer’s Agreement (Ann.C-1) with the Opposite Party No.1 on 20.6.2007 for allotment of plot and paid an amount of Rs.10.35 lacs as booking amount.  Accordingly, the Opposite Party NO.1 allotted 300 sq. yard plot bearing No.435 in Sector 109, Mohali in the name of complainant Krishan Gopal.  The complainant was to pay a total sum of Rs.36,19,104/- including External Development Charges, as per the Schedule Ann.A-I, which he had paid well in time (Ann.C-3) and as such, got 5% waiver on the basic price from the OPs vide Ann.C-4 & C-5. It is averred that on the request of the complainant the name of his wife was added as co allottee.   However, due to some acquisition problem, the plot allotted was changed to Plot NO.395, Augusta Park, Sector 109, Mohali Hills and addendum to this effect was also signed between the parties.  It is averred that as per agreement, the possession of the said plot was to be delivered to the complainant within 2 years from the date of execution of the agreement i.e. 20.6.2007, but not later than 3 years i.e. 19.6.2010 and further, as per the terms, the penalty of Rs.50/- per sq. yard per month was stipulated for the delayed period in delivering the possession of the plot. 

         That Opposite Party No.2 vide letter dated 23.1.2011 offered the possession of the said plot to the complainant, but on verification, it was found that no basic amenities such as roads, sewerage, water and electricity connections etc. have been provided at the site.  However, on the assurance of the company to provide basic amenities at the site, accepted the possession of the plot and Opposite Party gave possession certificate dated 23.1.2011 (Ann.C-6).  It is pleaded that to utter dismay of the complainants, the Opposite Party No.2 sent a letter dated 21.4.2014 demanding Rs.10,88,996.10/- (Ann.C-9) as settlement final dues of the said plot.  It is submitted that although the complainants agreed to pay the stamp duty charges for registration of the sale deed, in his favour, but other demands as mentioned in the demand letter dated 21.4.2014 under various heads are illegal, arbitrary and against the terms & conditions of the agreement. Being aggrieved, the complainant sent a legal notice dated 25.9.2014 to the OPs to withdraw the illegal demand raised by them (Ann.C-11), but to no avail.  Hence, this complaint has been filed.

 

2]       The Opposite Parties have filed joint reply and took objection that the complaint is time barred. The factual matrix of the case with regard to allotment of unit in question as well as delivery of its possession to the complainants vide certificate dated 23.1.2011 and factum of demand raised vide letter dated 21.4.2014 is admitted.  It is stated that OPs vide letter dated 21.4.2014 asked for balance payments from the complainants to take up the unit for registration of sale deed, but they instead of paying the due charges have challenged the amenities not being in place on false and frivolous grounds.  It is submitted that the complainants have paid an amount of Rs.34,46,604/- towards the sale price of the plot while the OPs have credited an amount of Rs.1,72,500/- towards waiver of last instalment (5% OTPR) in terms of Emaar MGF cares for you programme. (Ann.R-1).  It is also stated that the compensation payable as per the agreement Clause 08 has already been credited in the accounts of the complainants after adjustment of all waivers/incentives (Ann.R-1 @ Sr.No.28) and they had already credited an amount of Rs.1,06,130/- as compensation for delay in handing over the possession calculated @Rs.50/- per sq. yard per month.

         It is pleaded that the company has communicated to the complainants that the club charges are optional and incase the complainants do not wish to avail the same, they may submit an Indemnity.  The Indemnity format has been shared with them vide mail dated 24th April, 2014. That the present rate of EDC is calculated @Rs.807/- per sq. yard and the company has only demanded the differential amount from the complainants.  Further, the State Govt. has revised the EDC from time to time and since any increase or decrease in the government levy has to be borne by the allottee, as per agreement, and also in terms of Indemnity-cum-undertaking dated 20.1.2012, submitted by the complainant, the EDC was calculated @Rs.807/- per sq. yard due to revision in the rate of EDC.  It is also submitted that vide letter dated 21.4.2014 only balance EDC calculated @Rs.316.17/- per sq. yard (807-490.83=316.17x300=Rs.94,851/-) has been demanded from the complainants, as per the terms of Buyer’s Agreement.  That the complainants have agreed to pay the other charges as per the terms & conditions of the Buyer’s Agreement and now they cannot question the chargers.  It is further submitted that the registration charges and stamp duty both are payable to government separately and the complainants are unnecessarily raising frivolous pleas. That the complainants have duly been explained all the charges levied in the final statement of accounts but the complainants wants to agitate the same unnecessarily.  Rest of the allegations have been denied with a prayer to dismiss the complaint.        

 

3]      The Complainants also filed rejoinder wherein the averments as contained in the complaint have been reiterated and those as alleged in the written statement by the Opposite Parties have been controverted.

 

4]       Parties led evidence in support of their contentions.

 

5]      We have heard the learned counsel for the parties and have perused the record and written arguments.

 

6]       It is settled between the parties that the complainant Sh. Krishan Gopal was initially allotted Plot No.435 in the project of the OPs and in pursuance to the said allotment, Plot Buyer’s Agreement was entered into between the parties on 20.6.2007.  Subsequently, the Plot was changed to Plot No.395, Augusta Park, Sector 109 and the wife of the complainant Seema Dhingra was added as Co-allottee and an addendum was signed between the parties to this effect and thus, the allotment in the present complaint stands in the name of the present complainants.  It is further clear that the total sale consideration of the said plot is Rs.34.50 lacs and by virtue of External Development Charges of Rs.1,69,104/- the total amount comes out to be Rs.36,19,104/- to be payable by the complainants for the said plot, which admittedly was paid in time by the complainants. 

 

         There is no denial that the complainants were rewarded for paying all the installments in due time and were given 5% waiver on basic price on last installment for the timely payment of installments and the waiver of the same was confirmed vide letter dated 6.7.2009 issued by the OPs.

 

7]       After discussing the settled issues, now we transfer to the issues in dispute. It is objected on the part of the OPs that the present complaint is time barred as the cause of action accrued in favour of the complainants only from the date of acceptance of the possession on 23.1.2011.  This objection is not sustainable for the reasons that the cause of action in the present complaint is continuous one and it further continued when OPs raised the alleged demand vide  Annexure C-9 i.e. demand letter dated 21.4.2014.

8        The claim of the OPs that the complainants have bought the present unit for investment/speculative purposes and as such not ‘consumers’ is also not tenable as this plea is too devoid of any cogent evidence to this effect so hereby reject.

9.       It is the grouse of the complainants that the OPs were supposed to deliver the possession of the said unit within two years from the date of execution of agreement i.e. 20.6.2007 but not later then 3 years i.e. 19.6.2010 and as per the terms of the said agreement, the OPs are liable to pay penalty of Rs.50/- per sq. yard per month for the delayed period of delivering the possession of the plot, which was delivered , vide letter dated 23.1.2011 instead of 19.6.2010 and thus, the complainants are entitled for the stipulated amount. 

         It is also claimed by the complainants that they accepted the possession certificate dated 23.11.2011 on the assurance of the company to provide basic amenities, which they failed to provide while delivering the possession of the plot in question. Even the OPs failed to produce on record any cogent document vide which it can be said that they provided all the basic amenities while delivering the possession of the plot. In addition, the complainants submitted that they duly and timely paid the amount of Rs.21,854/-, the balance amount claimed by the OPs.

          The main grouse of the complainants pertains to demand letter dated 21.4.2014 issued by the OPs whereby the complainants were asked to pay Rs.10,88,996.10/- as settlement of final dues of the above said plot. The complainants disputed that the above said demand has raised under different heads, out of which they are liable to pay only the stamp duty charges and registration charges to be paid for the registration of the sale deed in their favour and other demands under various heads are illegal, arbitrary and against the terms & conditions of the agreement.

 

10]      The OPs have claimed that the complainants are not entitled for any relief claimed as they have not paid the dues claimed vide letter dated 21.4.2014.  The OPs claimed that the complainants can get the club membership waived off after submitting indemnity and are liable to pay the registration, stamp duty and enhanced EDC charges, as per the Plot Buyer’s Agreement.  On merits, they claimed that due to delay in handing over of the possession of the unit in question, they had paid compensation payable as per the agreement Clause 8 and the said amount has been credited in the accounts of the complainants after adjustment of all waivers/incentives given to the complainants by the Company in terms of the indemnity dated 22.4.2014 submitted by the complainants.

11.      The complainants disputed that since they had admittedly paid all the installments thus are not liable to pay any late payment charges as demanded vide letter dated 21.4.2014.  Further, claimed that the demand on account of club charges, is also illegal as availing the facility of club membership is optional and also the demand of External Development Charges (EDC) amounting to Rs.94,851/- has been demanded without disclosing as to what is the enhanced amount of EDC imposed by the government and from which date, as the project has been delayed by the OPs only.

 

12]      In this backdrop, we are left to determine as to whether the demand letter dated 21.4.2014 issued by the OPs is justified and if positive, then to what extent?

 

13]      For the settlement of dispute, we have thoroughly gone into the terms of Plot Buyer’s Agreement as placed on record by the parties, as well as thoroughly considered the submissions of the parties and also gone through evidence placed on record by the parties.  In our considered opinion, the main demand on account of ‘delayed payment charges’, is highly unjustifiable as on one side the OPs are rewarding the complainants for making timely payments of the installments and now contrarily demanding delayed payment charges.  Thus, the demand of the OPs in this regard is not tenable.

          Further, there is no record of the OPs to clarify that how they have calculated the amount of Rs.94,851/- i.e. amount claimed for enhanced EDC as it is admitted that complainants have already paid the EDC charges while making payment for the unit in question.  Thus, this demand of Rs.94,851/- is without any valid proof and hence not tenable.

      In a similar way, the complainants have nowhere opted for the Club Membership, so claiming the amount towards club membership to the tune of Rs.1,12,360/- is also not justifiable and thus, the complainants are under no obligation to pay the same. 

 

14]      In addition to above, the OPs have failed to place on record any cogent evidence to show the presence/availability of all the basic amenities, as agreed to have been provided at the site at the time of booking of the plot in question as well at the time of offering the possession of the plot in question, therefore on that account the complainants are liable to pay the amount only from the date when the said amenities were made available or shall be made available to the complainants by the OPs.  So, the amount demanded on that account too can be deferred until the fresh calculations are submitted by the OPs.  

          Further, it is not very clear from the statement of account placed on record by the OPs that they had properly made the adjustment of penalty to be paid by them to the complainant for late delivery of possession as per clause 8 of the agreement.   As per record there is delay of more than approximately 17 months in delivering the possession to the complainants and if the amount is calculated as per clause 8 of the agreement the  delayed amount to be paid to the complainants comes out to be much more than the amount claimed to have been credited in the account of the complainants by the OPs. Hence we are of the opinion that the Opposite Parties are liable to pay the complainants the remaining amount after properly calculating the same as per clause 8 of the Plot Buyer Agreement.

 

15]      However, the complainants shall be liable to pay only Stamp Duty charges and registration charges for the registration of the sale deed in respect of the unit in question. Apart from this, all other charges, as demanded by the OPs vide Ann.C-9, stands quashed being not justifiable.  

 

16]      Since, there is no cogent evidence to show the availability of the basic amenities at the site of plot in question, so the allegation of the complainants stands proved and thus, the OPs are liable to pay compensation for non-providing of the basic amenities as agreed for. The OPs are held liable for troubling the complainants to indulge in litigation to get rid of their illegal demands which they were not under obligation to pay except only the stamp duty and registration charges.  

 

17]      In view of the above discussion, the present complaint deserves to be allowed and the same is accordingly allowed. The Opposite Parties are jointly & severally directed as under ;-

1. To pay the balance of delay charges  to be paid as per clause 8 of the agreement to the complainants as the amount accounted for on that account by the OPs in the account of the complainant is short.
2.  To charge only stamp duty, and registration charges from the complainants. However, the charges for basic amenities be charged only from the date when the same are made available to the complainants.
3. To pay a sum of Rs.25,000/- as compensation to the complainants on account of mental tension, agony, harassment suffered due to deficiency in service of the Opposite Parties.
4. To pay Rs.7,000/- as litigation expenses.

         This order shall be complied with by the Opposite Parties jointly & severally within one month from the date of receipt of its certified copy, failing which, they shall be liable to pay the compensation amount of Rs.25,000/- alongwith interest @ 18% p.a. from the date of filing of the present complaint, till its realization, besides costs of litigation.

        Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

23.02.2016                                       

                                                                             Sd/-            

 (RAJAN DEWAN)

PRESIDENT

 

 

sd/-

 (JASWINDER SINGH SIDHU)

MEMBER

                                                                                                                     

 

                                                                                Sd/-

(PRITI MALHOTRA)

                                                                        MEMBER

Om 

DISTRICT FORUM – II

CONSUMER COMPLAINT NO.519 OF 2014

PRESENT:   None   Dated the 23rd day of February, 2016

O R D E R                        Vide our detailed order of even date, recorded separately, this complaint case has been allowed against the Opposite Parties.                    After compliance, file be consigned to record room.

 

(Jaswinder Singh Sidhu)	(Rajan Dewan)	(Priti Malhotra)
Member	President	Member