Chandigarh

StateCommission

CC/57/2016

Dr. Divya Dahiya - Complainant(s)

Versus

M/s Omaxe Chandigarh Extension Developers Private Limited - Opp.Party(s)

Anil Ghanghas Adv.

15 Jul 2016

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	57 of 2016
Date of Institution	:	12.02.2016
Date of Decision	:	15.07.2016

 

Dr. Divya Dahiya D/o Dr. Bhim Singh Dahiya R/o #2073, Sector 21, Panchkula – 134116 (presently working as Associate Professor, Department of General Surgery, PGIMER, Chandigarh).

 ……Complainant.

Versus

1. M/s Omaxe Chandigarh Extension Developers Private Limited through its Branch Manager, Regional Office at SCO 143-144, First Floor, Sector 8-C, Madhya Marg, Chandigarh – 160008.
2. M/s Omaxe Chandigarh Extension Developers Private Limited through its Managing Director, 10, Local Shopping Complex, Kalka Ji, New Delhi – 110019.

              .... Opposite Parties.

 

 

Complaint under Section 17 of the Consumer Protection Act, 1986

 

BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                MR. DEV RAJ, MEMBER.

                MRS. PADMA PANDEY, MEMBER.

 

Argued by:   Sh. Anil Ghanghas, Advocate for the complainant.

                    Sh. Munish Gupta, Advocate for the Opposite     Parties.

 

PER DEV RAJ, MEMBER

            The facts, in brief, are that one Mahinder Singh was initially allotted an independent floor bearing No.547, Ground Floor having built up area of 1920 sq. ft. by Opposite Party No.1 vide allotment letter dated 11.07.2011 (Annexure C-1). He  paid Rs.4 Lac as the booking amount vide receipt dated 6.10.2010 and part payment of Rs.6,07,000/- vide receipt dated 11.5.2011. (Annexures C-2 colly.). He further deposited revocation cost of Rs.1 Lac and endorsement fee of Rs.42,355/- with Opposite Party No.1 vide receipts dated 11.5.2011 and 18.7.2011 respectively (Annexures C-3 colly.). The complainant purchased the said apartment from Sh. Mahinder Singh and paid the entire payment including booking amount, part payment to him. The said apartment was transferred in favour of the complainant and allotment/Agreement dated 30.08.2011 (Annexure C-4) was executed by the Opposite Parties with the complainant. The total cost of the apartment including additional cost of club, external electrification cost, power backup installation etc. was Rs.51,80,000/-. The complainant also took loan of Rs.30 Lacs from State Bank of Patiala to make payment of installments. The complainant, in all, paid an amount of Rs.58,59,936/- (inclusive of Rs.5,33,656/- on account of increased area and Rs.2,16,000/- as final installment i.e. 5% BSP + other charges) as per detail given in Para 6 of the complaint. According to the complainant, the 10^th installment was also enhanced from Rs.2,51,750/- to Rs.5,56,323/- by the Opposite Parties, which was paid on 11.6.2016 (included in Rs.58,59,936/-). Thus, the complainant paid total amount of Rs.8,47,526/- towards the increased area cost of the apartment. As per clause 24(a) [in fact 31(a)] of the Agreement, possession of the apartment was to be given within 18 months (in fact 24 months) plus extendable period of 6 months i.e. 24 months (in fact 30 months) from the date of execution of the same i.e. on or before 30.08.2013 (in fact 01.03.2014).

2.         The complainant sent letter dated 27.12.2013 (Annexure C-8) to Opposite Party No.1 challenging such increase in the area of the apartment but it gave a vague reply dated 04.01.2014 (Annexure C-9) by referring to Clause 4 of the Agreement to justify increase in the area. The complainant has termed the demand on account of increase in area of the apartment to be farce, fraud committed on the complainant. It was stated that vide letter dated 21.11.2015 (Annexure C-10), Opposite Parties wrongly acknowledged the receipt of Rs.58,59,148.45 instead, the actual amount paid by the complainant was Rs.58,59,936/-.

3.         After receipt of final payment on 14.07.2015, the complainant was asked to take possession of the apartment by contacting the officials of the Opposite Parties present at their site office. On personally visiting the site several times, the said officials clearly informed the complainant that her apartment cannot be handed over as it is not ready.  It was stated that before offering possession, the Opposite Parties are bound to provide proper development at the site including basic amenities like drinking water, electricity with proper backup, sewerage work, roads and parks, community buildings i.e. Health Centre, Community Centre, Schools etc.

4.           It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also, indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, seeking directions to the Opposite Parties to give possession of the apartment, in question, in fully developed conditions by providing basic amenities like electricity, water, sewerage, roads and parks etc. in the locality; pay penal interest @18% per annum on the deposited amount of Rs.59,59,936/- (infact Rs.58,59,936/-) from 30.08.2013 till possession is delivered; refund Rs.8,47,526/- towards increased area cost alongwith interest @18% per annum from the date of payment till actual payment; pay Rs.10,00,000/-  as compensation for mental tension, agony, harassment and financial loss suffered by the complainant and Rs.75,000/- as litigation expenses.

5.           The Opposite Parties, in their written statement stated that Clause 31(a) was to be read in its entirety alongwith all clauses of the Agreement. It was stated that time was the essence of the Agreement and non-payment of installments in time hampered the development process. It was further stated that Clause 31(a) provided for time period for development with an obligation upon the developer that it shall put its best effort. It was further stated that in the instant case, the original allottee failed to adhere to the payment schedule, as a result whereof letters for revocation had to be issued and thereafter the unit had changed hands. It was further stated that the clauses of development cannot be used against the Opposite Parties. It was further stated that taking financial assistance was the prerogative of the complainant. It was further stated that the complainant consented for payment of the increased area and never raised any protest as would be clear from her letter dated January 2014 vide which she requested for extension of time for making payment for the enhanced cost, which was accepted. It was further stated that since no protest was made at that point of time, therefore, the instant protest qua the increased area, is unwarranted and uncalled for. It was further stated that the complainant was duly informed vide letter dated 4.1.2014 as regard increase in area as per agreed terms and conditions and therefore, she was liable to make payment of the outstanding amount. It was further stated that the complainant made payment of final balance amount of Rs.2,16,000/- without any protest and letter dated 21.11.2015 was issued to her for getting the conveyance deed registered, however, she did not come forward. It was further stated that the Opposite Parties were neither deficient, in rendering service nor they indulged into unfair trade practice. The remaining averments, made in the complaint, were denied.

6.         The complainant, in support of her case, submitted her affidavit, by way of evidence alongwith a number of documents.

7.         The Opposite Parties, in support of their case, submitted affidavit of Sh. Dheeraj Sharma, its Authorised Representative, alongwith a number of documents, by way of evidence. 

8.         We have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully. 

9.         It is evident on record that one Piyush Mohan Srivastava, originally booked the floor vide application dated 10.06.2010 and when he defaulted in making payment, one Mahinder Singh paid the revocation cost of Rs.1 Lac and provisional allotment letter dated 11.07.2011 (Annexure C-1) was issued in favour of the said Mahinder Singh. The complainant purchased an independent floor bearing No.547, Ground Floor having built up area of 1920 sq. ft. from Sh. Mahinder Singh. The complainant paid the entire payment to Mahinder Singh and apartment was transferred in her favour on 20.08.2011 by the Opposite Parties vide allotment letter (Annexure C-4). The total cost of the apartment including additional cost of club, external electrification cost, power backup installation etc. was Rs.51,80,000/-, as against which, the complainant paid more than 100% amount of Rs.58,59,936/- to the Opposite Parties, which included the increased area cost of the apartment. The complainant also took loan of Rs.30 Lacs from State Bank of Patiala for part payment of installments. The complainant, in all, paid an amount of Rs.58,59,936/-. As per Clause 31(a) of the Allotment Letter (Annexure C-4), possession of the apartment was to be given within 24 months or within an extended period of 6 months i.e. 30 months from the date of start of construction (Annexures C-4 and C-5) i.e. on or before 01.03.2014. In this case, there is virtually no significant difference between the date of allotment and start of construction. It is also evident from Annexure-B (Part – III) (Page 61 of the file) that the complainant opted Plan B: Interest Free Construction Linked Installment Plan and payment was to be made as per stages of construction.

10.       The first question, which falls for consideration, is, as to whether there was delay in offering possession of the plot, in question, and if so, to what extent. The allotment letter for independent floor in Row-Housing Project “Silver Birch” in the project of the Opposite Parties (Annexure C-4) was issued to the complainant on 30.08.2011. As per Clause 31(a) of the allotment letter, the Opposite Parties were to complete the development of the unit within 24 months or within an extended period of six months from the date of start of construction, subject to force majeure conditions. Since allotment letter is dated 30.08.2011, by computing 24 months plus 6 months period, the Opposite Parties were bound to deliver possession of the plot, in question, by 01.03.2014. The Opposite Parties have stated that period was to be computed by excluding Sundays, Bank Holidays, enforced Govt. holidays and the days of cessation of work at site in compliance of order of any Judicial/concerned State Legislative Body. Apparently, for seeking six months extension beyond 24 months or beyond six months extended period, the Opposite Parties owe an explanation, if the delay was on account of force majure conditions but nothing by way of cogent evidence to this effect has been placed on record. Thus, when no explanation for extension of six months period has been furnished, the Opposite Parties at the most could be allowed one out of the two benefits i.e. either six months extension beyond 24 months or period on account of Sundays/Holidays etc. This Commission in Consumer Complaint No.153 of 2015 titled ‘Mr. Madan Lal Taneja and another Vs. M/s Omaxe Chandigarh Extension Developers P. Ltd.’ decided on 03.11.2015, facts of which were almost identical, held that Opposite Parties were to hand over possession within 30 months from the date of start of construction. Thus, the possession of the unit, in question, was to be delivered by 01.03.2014. It is apparent from letter dated 21.11.2015 (Annexure C-10) that the Opposite Parties informed the complainant that they are under the process of getting the conveyance deed registered with the concerned authorities. Vide this letter the complainant was requested to contract Mr. Puneet Jolly or their Chandigarh Office regarding the same and also requested the complainant to coordinate with their officials viz. Mr. Rajendra Gupta & Mr. Palwinder Singh Virk regarding handing over of possession of the unit, in question. The complainant alleged that when she went for the said purpose, the official(s) informed her that the apartment, in question, cannot be handed over as it was not ready for possession. No specific communication whereby possession was offered to the complainant is on record. In a way, it confirms that possession was not ready.

11.       The complainant has already made payment in the sum of Rs.58,59,936/-. It is not the case of the Opposite Parties that there was any delay in making aforesaid payment by the complainant or any amount is due. Delay was only on the part of Sh. Piyush Mohan Srivastava, who had originally booked the floor. Admittedly, possession has not been delivered to the complainant as per period stipulated in clause 31(a) of the allotment letter or even after the extended period of six months, as per terms of the allotment letter or till date. The complainant has stated that proper development of the area including basic amenities like drinking water, electricity with proper back-up and sewerage work, roads and parks, community buildings i.e. Health Centre, Community Centre are not complete at the site. On the face of aforesaid facts and in the absence of placing on record any cogent evidence that the amenities at the site were complete, averment of the complainant that development and amenities were not complete has to be accepted. Had the amenities been completed at the site, then certainly the Opposite Parties, being in possession of the best evidence, having engaged a number of engineers/architects, would have placed, on record, their reports, to prove that factum. Thus, there has been delay in offering possession, which was due on 01.03.2014 (computing 24 months + 6 months from 30.08.2011 when complainant signed allotment letter (Annexure C-4). The aforesaid delay is clearly attributable to the Opposite Parties.

12.       The question, which now falls for consideration, is, whether the complainant is entitled to interest for delayed possession. The hard earned money of the complainant remained with the Opposite Parties and possession has been delayed beyond 24 + 6 months period stipulated in the allotment letter, for more than two years. It is evident from record that the complainant made payments in time. The complainant is, therefore, entitled to interest, for the period from 01.03.2014 till handing over of actual and complete physical possession of the apartment, in question, @12% per annum. In respect of payments made after 01.03.2014, interest @12% shall be payable from the dates of deposit(s) [in the event of delayed payment due or payable by the allottee, in terms of Clause 21 of the allotment letter, the Opposite Parties charge penal interest @18% per annum on the amount outstanding up-to one month delay from the due date of outstanding and @24% per annum thereafter on all outstanding dues from their respective due dates.]

13.       The next question, which falls for consideration, is as to whether the Opposite Parties could increase the area of the apartment, in question, and charge enhanced cost on that account from the complainant. Clause 4 of the Allotment letter, being relevant, is extracted, hereunder;-

“4.  The Allotte(s) agrees that he shall pay the price of the said Unit and other costs calculated on the basis of super area, which is understood to include pro-rata share of the common areas in the Project. It is further understood and agreed by the Allottee(s) that the area of the said Unit given in this Allotment Letter is tentative and subject to change as per direction of the Sanctioning Authority or Architect or Structural Engineers of the Company which may result in change (decrease/increase) in the area of the said Unit, change in its dimension, size, location, number, boundaries etc. shall be confirmed on completion of development of the Project. In case of increase in the allotted area of the said Unit or the area of the lawn/land beneath the building in which said Residential Unit is situated, the Allottee(s) shall pay for the initial 10% of increase in area at the then prevailing company’s rate/market rate. In case of decrease of the allotted area of the said Unit, the amount, received in excess over and above the total cost of the said Unit based on the changed area, shall be refunded/adjusted (as the ‘case’ may be) by the Company without any interest.” 

 

As is evident from the contents of letter dated 14.12.2013 (Annexure C-7), the Opposite Parties informed the complainant that the changes in the building plan of the complex were duly approved, consequent to which, the area of the provisionally allotted unit was increased by approx. 220 sq. ft and the revised area of the unit arrived at 2140 sq. ft. Vide this letter, the Opposite Parties also requested the complainant to make payment of proportionate outstanding amount towards increase in the area of the unit on or before 28.12.2013 as per demand letter. As admitted by the Opposite Party in letter dated 14.12.2013, the increased area was to be charged at the original booking rate. The relevant para of letter dated 14.12.2013 is extracted hereunder:-

“We have provisionally allotted you a Unit bearing No.547 admeasuring tentative area of 1920 sq. ft. on Ground floor in the aforesaid Residential Township and executed an Allotment Letter/Agreement dated 9/30/2011 (MM-DD-YYYY) in your favour. Keeping in mind the overall betterment of the Residential Complex/best utilization of the area, changes in the building plan of the aforesaid Complex had been suggested by the Architects of the Company, which was duly approved by the sanctioning authority and these led to change in the size of your provisionally allotted Unit, thereby an increase of area of approx. 220 sq. ft. in the size of the aforestated provisionally allotted Unit. Thus, the revised area for the Unit arrived to 2140 sq. ft. instead of old allotted Unit. Increased area will be charged at the original booking rate.”

 

It is not the case of the complainant that the Opposite Party instead of charging for the increased area at the original booking rate, charged for the same on higher rate. Rather, the matter was agitated by the complainant on the ground of non-obtaining of consent of the complainant for such increase vide letter dated 27.12.2013 (Annexure C-8), relevant portion, whereof is extracted hereunder:-

“…Firstly this demand on the part of the Company is illegal and therefore not acceptable. Secondly, it is the result of some unilateral actions of the Company with which I was never associated, nor my consent was obtained……”

In reply to the letter of the complainant, the Opposite Parties vide letter dated 04.01.2014 (Annexure C-9), informed that the area was increased in accordance with Clause 4 of the allotment letter. Perusal of afore-extracted Clause 4 of the allotment letter, shows that the complainant undertook to pay for any increase in the area of the apartment in question and in case of any reduction in the same, the Opposite Parties were to refund the excess amount charged. Once the complainant, accepted the terms and conditions of the allotment letter, by singing the same, she could not turn round and say that she was not liable to pay for any increase in the area of the apartment, in question. Had the Opposite Parties charged for the enhanced area on higher rate instead of originally allotted rate, the matter would have been different. The complainant did not raise any protest while making payment on this account. The complainant was, therefore, liable to pay for the increased area in accordance with the provisions of Clause 4 of the allotment letter.

14.       The question, however, arises, as to whether the complainant has paid cost towards increased area in the sum of Rs.5,36,953/- or in the sum of Rs.8,47,526/-. The complainant has sought refund of Rs.8,47,526/- said to have been paid by her on account of increased area cost. The increase in area was 220 sq. ft. and at the rate of Rs.2,622.40Ps, the increased cost worked out to Rs.5,76,928/-. The complainant was asked to deposit Rs.5,36,953/- towards increased cost of the apartment by 30.01.2014. It has been further stated that an amount of Rs.3,10,573/- was extracted from her (complainant) in the 10^th installment. This is how the complainant has calculated a total amount of Rs.8,47,526/-, which was duly deposited by her. The complainant alongwith her rejoinder annexed copy of statement of account dated 09.07.2015 (Annexure C-12), relevant portion of which is extracted hereunder:-

PARTICULARS	AMOUNT (In Rs.)
A) (I) Net Basic Sale Price	56,42,298.48
(II) ADDITIONAL
Power Backup Equipment Cost-1	85,000.00
Club Cost	40,000.00
Interest Free Maintenance Security	20,000.00
(III) Other Cost
Infrastructure Cost/Cess (Levy by Govt.)	28,000.00
Meter Cost-1	26,550.00
Electrical Sub-Station Cost-2	13,300.00
Utility Cost	4,000.00
Total (I+II+III)	58,59,148.48
B) Interest on account of delayed remittance	14,137.00
Grand Total (A+B)	58,73,285.48
C) Received Amount	54,83,202.56
Balance Due (A+B-C)	3,90,082.92
Service Tax	18,910.60
GRAND TOTAL	4,08,993.52

 

 

 

As per the aforesaid statement of account, the payment made by the complainant is shown in the sum of Rs.54,83,202.56. In addition, admittedly, the complainant made payment in the sum of Rs.2,16,000/- to the Opposite Parties out of Rs.4,08,993.52 shown due, as is evident from receipts dated 14.07.2015 (Pages 80 – 81 of the file). Taking the amount, shown in the aforesaid statement of account, received from the complainant, it is clear that the complainant made payment in the sum of Rs.56,99,202.56 (i.e. Rs.54,83,202.56 + Rs.2,16,000.00) as per aforesaid details. The details of payments totaling Rs.58,59,936/- made by her to the Opposite Parties, as given in Para 6 of her complaint, have not been disputed by the Opposite Parties. Therefore, the amount in the account of the complainant to the extent of Rs.1,60,733.44/- i.e. (Rs.58,59,936.00  - Rs.56,99,202.56) has been shown less. Thus, against the total amount of Rs.58,73,285.84Ps, for the unit as per aforesaid statement of account, the complainant has already paid a sum of Rs.58,59,936/- and only payment of Rs.13,349.84Ps is payable by her to the Opposite Parties. The Opposite Parties in their written statement have stated that delay penalty has been adjusted, by issuing credit note dated 24.08.2015 to the tune of Rs.1,78,856/- and Rs.15,634/- in favour of the complainant for the period of delay in handing over possession. Apparently, this amount is in addition to Rs.58,59,936.00 paid by the complainant and credit of this amount does not figure in the aforesaid statement of account. Since the complainant is being awarded interest @12% for delay period, Opposite Parties are entitled to debit this amount from the account of the complainant.

15.       The next question, which falls for consideration, is, as to whether the complainant is entitled to compensation for mental agony and physical harassment on account of delay in handing over possession of the unit, in question. Clearly, the complainant made full payment of the unit, in question. Despite payment of whole amount, the complainant has not been offered/delivered possession of the unit, in question, by the Opposite Parties till date. It is not the case of the Opposite Parties that the delay was on account of force majure conditions. The Opposite Parties were clearly deficient in rendering service and indulged into unfair trade practices. The complainant, thus, underwent immense mental agony and physical harassment for which, she is entitled to compensation. However, the compensation in the sum of Rs.10 Lacs claimed by the complainant is on the higher side. By granting 12% interest for delay period, the complainant has been adequately compensated. The complainant shall also get the benefit of escalation in price of the flat. In our considered opinion, compensation in the sum of Rs.1,00,000/-, if granted, shall meet the ends of justice.

16.         No other point, was urged, by the Counsel for the parties.

17.       For the reasons recorded above, the complaint is partly accepted with costs against the Opposite Parties, in the following manner:-

1.       To hand over physical possession of  the apartment, allotted in favour of the complainant, complete in all respects, to the complainant, within a period of two months, from the date  of receipt of a certified copy of this order, on payment of the amount, legally due, if any, against her.
2. To execute and get registered the conveyance deed, in respect of the unit, in question, within one month from the date of handing over possession, as indicated in Clause (i) above, on payment of registration charges and stamp duty, by the complainant.
3. To pay compensation, by way of interest @12% p.a., on the deposited amount, to the complainant, from 01.03.2014 to 31.07.2016, within two months, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry penal interest @15% p.a. instead of 12% p.a., till realization.
4. To pay compensation by way of interest @12% p.a. on the deposited amount, w.e.f. 01.08.2016, onwards (per month), till delivery of possession, by the 10th of the following month, failing which, the same shall also carry penal interest @15% p.a., instead of 12% p.a., from the date of default, till payment is made.
5. To pay compensation, in the sum of Rs.1,00,000/- (Rupees One Lac only) on account of mental agony and physical harassment, caused to the complainant, within two months from the date of receipt of a certified copy of this order, failing which, the same shall carry interest @12% p.a., from the date of filing the complaint till realization.
6. To pay cost of litigation, to the tune of Rs.50,000/-, to the complainant, within two months from the date of receipt of a certified copy of this order, failing which, the same shall also carry interest @12% p.a., from the date of filing the complaint till realization.

18.       Certified copies of this order be sent to the parties, free of charge.

19.       The file be consigned to Record Room, after completion.

Pronounced.

July  15, 2016.

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

[DEV RAJ]

MEMBER

 

 

[PADMA PANDEY]

 MEMBER

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