Chandigarh

StateCommission

A/292/2015

Emaar MGF Land Limited - Complainant(s)

Versus

Rajwinder Singh - Opp.Party(s)

Ashim Aggarwal, Adv.

29 Dec 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Appeal No.	:	292 of 2015
Date of Institution	:	06.11.2015
Date of Decision		29.12.2015

 

Emaar MGF Land Limited, through its Manager, SCO No.120-122, 1st Floor, Sector 17-C, Chandigarh.

……Appellant/Opposite Party.

Versus

Rajwinder Singh son of S. Indermohan Singh, resident of House No. 1435-B, Sector 61, Mohali, through his father and GPA S. Indermohan Singh.

              ....Respondent/Complainant.

 

Appeal under Section 15 of the Consumer Protection Act, 1986.

 

BEFORE:    JUSTICE JASBIR SINGH  (RETD.), PRESIDENT.

                MR. DEV RAJ, MEMBER.

                MRS. PADMA PANDEY, MEMBER

 

Argued by:  Sh.Ashim Aggarwal, Advocate for the appellant.

                   Sh. Gaurav Bhardwaj, Advocate for the respondent.

 

PER DEV RAJ, MEMBER

              This appeal is directed against the order dated 28.09.2015, rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which, it partly allowed the complaint, filed by the complainant (now respondent) and directed the Opposite Party (now appellant), as under:-

“19.     For the reasons recorded above, we find merit in the Complaint and the same is partly allowed. The Opposite Party is directed as under:-

i.   To withdraw the illegal demand of Rs.5,43,252/- made vide letter dated 30.06.2014. However, it is made clear that the Complainant shall be liable to pay the Stamp Duty, Registration and other incidental charges at the time of registration of the Conveyance Deed and electricity connection charges, electrification charges, monthly maintenance charges, interest free maintenance security and water charges at the time of raising construction on the plot. 

ii.  To refund Rs.4,31,250/- i.e. PLC, along with interest @ 9% per annum from the date of deposit, till actual payment;  

iii. To refund the interest on the extra EDC amount of Rs.3,01,200/- along with interest @ 9% per annum from the date of deposit, till actual payment;

iv.  To make payment of Rs.1,00,000/- as compensation to the Complainant on account of unfair trade practice and deficiency in service; 

v.   To pay Rs.11,000/- as litigation expenses;

20.     This order shall be complied with by Opposite Party within one month from the date of receipt of its certified copy; thereafter Opposite Party shall pay the amount mentioned at Sr.No.(ii) and (iii) above with interest @ 12% per annum instead of 9% per annum from the respective dates of deposit, till actual payment; and the amount mentioned at Sr.No.(iv) above with interest @ 12% per annum from the date of filing of the present complaint, till realization by the complainant, besides complying with the directions mentioned at Sr.No.(i) and (v) above.”

2. The facts, in brief, are that the complainant purchased a plot bearing No.188 (300 Sq. yds.) in Augusta Greens, Sector 109, Mohali Hills, S.A.S. Nagar Mohali, from its previous owner Ms. Shubra Jain. It was further stated that the said plot was transferred in his name vide letter dated 03.05.2008 (Annexure C-2) and Buyer’s Agreement was also endorsed in his favour on 01.05.2008 (Annexure C-5 colly). It was further stated that the complainant paid the installments, as per plan, whereupon he was informed by the Opposite Party vide letter dated 17.07.2009 (Annexure C-6) that he had qualified for 5% incentive for timely payments and his last installment was waived off (Receipts Annexure C-6 to C-15). It was further stated that the complainant received a letter dated 28.12.2009 (Annexure C-16) from the Opposite Party regarding making payment of External Development Charges (for brevity EDC) of Rs.3,74,196/-, thereby intimating that he had Rs.0/- outstanding amount and Rs.0/- as delayed interest and on payment of EDC the possession would be handed over to him. It was further stated that the said amount was paid by the complainant on 30.03.2010 and finally, he was handed over the paper possession on 28.10.2010 by the Opposite Party (Possession Certificate, Annexure C-19A). It was further stated that there were no basic amenities at the site at that time. It was further stated that the complainant thereafter sent a number of e-mails regarding the EDC and possession to the Opposite Party (Annexure C-20 colly), but the Opposite Party dilly dallied the matter on one pretext or the other. It was further stated that the complainant was supposed to give EDC of Rs.72,996/- but the Opposite Party charged Rs.3,74,196/- from him. It was further stated that the Opposite Party demanded delayed payment charges of Rs.1,04,096.57P, club membership of Rs.1,12,360/-, stamp duty charges of Rs.4,86,000/- and other charges vide letter dated 30.06.2014. It was further stated that EDC charges of Rs.3,01,200/- were also reversed (Annexures C-21 & C-22). It was further stated that the Opposite Party was, therefore, bound to refund the same alongwith interest @18% p.a. from the date of deposit till actual payment. It was further stated that the complainant sent e-mails to the Opposite Party submitting that the stamp duty charges would be paid directly to the Government and the delayed payment charges and club membership charges were not payable (Annexure C-23 colly). It was further stated that the complainant also paid PLC charges to the tune of Rs.4,31,250/- on account of the fact that the plot was preferentially located in front of 200 ft. wide road; whereas, the said 200 ft. wide road was not in existence, and there was only wild grass on the land. Furthermore, there was no approach road even to the Plot of the complainant. It was further stated that the aforesaid acts of the Opposite Party, 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 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Party,  to withdraw illegal demand of Rs.5,43,252/- made vide letter dated 30.06.2014; refund Rs.4,31,250/- & Rs.3,01,200/- paid as PLC and extra EDC alongwith interest @18% per annum from the date of deposit till actual payment; pay compensation to the tune of   Rs.2 lacs,  for deficiency in service and unfair trade practice; and litigation expenses to the tune of Rs.55,000/.
3. The Opposite Party, in its written version, took up certain preliminary objections to the effect that complainant was not a consumer; complaint was time barred and the complainant be relegated to the alternative remedy of Arbitration as provided for in Clause 39 of the Agreement. It was stated that detailed and voluminous evidence would be required to be appreciated in the present complaint which could not be done in a summary proceeding before the Forum. It was further stated that the Opposite Party had offered possession to the complainant within time period mentioned in the agreement, vide letter dated 28.12.2009 (Annexure C-16) and possession was duly taken over on 28.12.2010 (Annexure C-19A), without any protest. It was further stated that some of the allottees, who were offered possession, alongwith the complainant, had even constructed their units, and were staying therein (Possession Certificates Ex.OP/2 colly). It was further stated that at the time of allotment/execution of Buyer’s Agreement, EDC was demanded on the basis of EDC charges calculated @ Rs.563.68/- per sq. yd. It was further stated that the State Government revised the EDC from time to time and the demands of the EDC were made accordingly. It was further stated that thereafter since there was reduction in the EDC, the same was calculated @Rs.807/- per sq. yd. and the amount of Rs.3,01,200/- had been reversed/credited in the account of the complainant as per letter dated 30.06.2014 (Annexure C-22). It was further stated that the Opposite Party demanded stamp duty and registration charges since the same was being facilitated by it. It was further stated that the amount towards club charges was optional subject to the allottee submitting indemnity. It was further stated that the delayed payment charges were towards interest charges by the Opposite Party on amounts which were remitted late by the complainant. It was further stated that the same had nothing to do with the waiver of 5% confirmed vide letter dated 17.7.2009 (Annexure C-6) which was given as an exception. It was further stated that the plot of the complainant was facing major road to be developed by the Government authorities and hence, carried preferential charges. It was further stated that the Opposite Party did not charge any excess EDC. It was further stated that due to decrease in EDC charges, due credit of excess amount was given to the complainant. It was further stated that the demand raised vide letter dated 30.6.2014 was totally valid and all mandatory amounts were payable by all allottees.  It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
4. In the rejoinder filed by the complainant, he reiterated all the averments, contained in the complaint and repudiated those, contained in the written version of the Opposite Party. It was stated that there was still no development at the site and there was no approach road to the plot of the complainant. It was further stated that the 200 ft. wide road had also not yet been constructed though  PLC for the same had already been paid by the complainant, it was still an open piece of land (Photographs Annexure C-25 colly). It was further stated that the Club was not in existence and only a board had been put on a piece of land by the Opposite Party, so the club charges were not payable (Photograph Annexure C-29).
5. The Parties led evidence, in support of their case.
6. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, partly allowed the complaint, in the manner, referred to, in the opening para of the instant order. 
7. Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party.
8. We have heard the Counsel for the parties, and, have gone through the evidence, and record of the case, carefully. 
9. The first question, which falls for consideration, is, as to whether the complaint filed by the respondent before the District Forum was time barred. Counsel for the appellant has submitted that since complainant took over possession on 28.12.2010, the complaint could not have been entertained in 2015 i.e. after expiry of two years limitation period from 28.12.2010. It may be stated here that the respondent in his complaint primarily challenged the demand of Rs.5,43,252/- raised by the appellant vide its letter dated 30.06.2014 on the ground that the same was illegal. It is also a fact that 200 ft. wide road on account of which Preferential Location Charges were paid by the respondent, was not in existence. Since the cause of action arose on issuance of letter dated 30.06.2014, the complaint by no stretch of imagination, could be said to be barred by limitation. Therefore, this objection of the appellant, being devoid of substance, stands rejected.
10. The next question, which falls for consideration, is, as to whether the demand of Rs.5,43,252/- raised by the appellant vide its letter dated 30.06.2014, for the following components, is legal or not:-

 

Payable Components	Amount Payable (Rs.)
Over dues (if any) including applicable Service Tax as on date	-1.00
Delayed Payment Charges, as applicable	1,04,096.57
Club Membership Charges Rs.1,00,000/-	1,12,360.00
Stamp Duty Charges Rs.4,86,000/-	4,86,000.00
Reverse EDC Rs.-3,01,200/-	-3,01,200.00
Registration Charges Rs.54,000/-	54,000.00
Interest Free Maintenance Security @100 per SYD	30,000.00
Electricity Connection Charges Rs.24196/-	24,196.00
Electrification Charges @47.5 per SYD	14,250.00
Monthly Maintenance Charges from 01-AUG-14 to 31-JUL-15 @3.25 Per SYD + Service Tax @12.36%	13,146.00
Water Charges @1500/- Fixed plus 350/- Pm/Sq.yds from 01-AUG-14 to 31-JUL-15 including Service Tax @12.36%	6,405.00
Total	5,43,251.21

 

In so far as delayed payment charges in the sum of Rs.1,04,096.57 are concerned, the District Forum in Para 13 of its order has rightly held that the same were not payable. Para 13 of the District Forum order is extracted hereunder:-

“13.        The next point for determination is whether the demand of Rs.1,04,096.57P towards delayed payment charges vide letter dated 30.06.2014 (Annexure C-22) by the Opposite Party is justified or not? It is noteworthy that the Opposite Party had not informed the Complainant about any liability of delayed payment by the previous allottee. The Opposite Party charged Rs.75,000/- as Transfer Fee and transferred the Plot, without any objection in the name of the Complainant, vide endorsement dated 01.05.2008 (Annexure C-5 colly). It is also worth noting that the Opposite Party vide letter dated 17.07.2009 (Annexure C-6) informed the Complainant that he had qualified for 5% incentive under ‘On Time Payment Incentive Program’, therefore, the last installment of Rs.1,72,500/- stood waived off. The copies of the receipts (Annexure C-7 to C-15) also show that the Complainant had been making timely payment of the installments. The letter dated 28.12.2009 (Annexure C-16) sent by the Opposite Party to the Complainant shows that the outstanding amount towards the Plot was ‘zero’ as per the payment plan agreed by him and the delayed interest thereon was also ‘zero’ on account of delay in making payment of installments. The e-mail message dated 27.09.2014 sent by the Opposite Party to the Complainant shows that in response to the grievance of the charges relating to delayed payment, it was informed that the delayed payment charges levied in his account were for the period prior to transfer of the said unit in his favour. At the same time, it was also informed by the Opposite Party that since the said waiver had been granted for Unit No.109-AG-188-300 which was presently allotted to him, it would not be possible for them (Opposite Party) to incorporate the waiver amount in his account without the indemnity. Thus, it is the admitted case of the Opposite Party that waiver had been granted in respect of the Plot of the Complainant, but he was to give indemnity for the same. We fail to understand when the Opposite Party had itself intimated the Complainant through letter dated 28.12.2009 (Annexure C-16) that the delayed interest was amounting to ‘zero’ and vide letter dated 17.07.2009 (Annexure C-6) had waived of the last installment of Rs.1,72,500/- on account of incentive under ‘On Time Payment Incentive Program’, how the question of recovery of Rs.1,04,096.97P arose. We are of the opinion that in view of the definite documentary evidence on record, the demand of Rs.1,04,096.97P towards delayed payment charges is absolutely illegal.”

 

As regards club membership charges in the sum of Rs.1,12,360/-, the respondent has specifically stated that the same being not in existence, he was not liable to pay the club membership charges. Further, club membership was optional. There is no serious dispute qua delayed payment and club membership charges. The appellant has also not pressed these payments in appeal during arguments. The District Forum has also rightly held that the respondent is not required to furnish any indemnity for waiver of delayed payment charges and for not opting for the club facility.

11.        The remaining major component is with regard to Stamp Duty Charges in the sum of Rs.4,86,000/- plus Registration Charges in the sum of Rs.54,000/- and taking into account reverse EDC in the sum of Rs.3,01,200/-, the effective amount is Rs.2,38,800/-. The sum total of Interest Free Maintenance Charges (IFMS), electricity connection charges, electrification charges, monthly maintenance charges and water charges, comes to Rs.87,997/-. In our considered opinion, the District Forum, in Para 16 of its order, rightly held that “…..it is pertinent to note that the Opposite Party has provided no electricity connection to the Complainant. According to the complainant, he would deposit the amount as and when he requires the electricity connection. According to the Complainant, no electricity connection in the said area has been provided by the PSPCL. We find that the Opposite Party has not produced any such documentary proof that any permanent electricity connection has been provided to any consumer in the said project. The question of payment of monthly maintenance charges, water charges and maintenance security also does not arise at this stage, because the Complainant has not raised the construction on the plot. Accordingly, we feel that the demand of electricity connection charges, electrification charges, monthly maintenance charges, interest free maintenance security and water charges is illegal, at this stage, and the Complainant cannot be forced to make the payment of the above said charges.” The aforesaid finding is just and correct and we concur with the same.
12.        The demand of Rs.5,43,252/- is, therefore, held to be partly illegal qua Rs.1,04,096.57 (delayed payment chares) and Rs.1,12,360/- towards club membership charges. As regards the demand of Interest Free Maintenance Security, Electricity Connection Charges, Electrification Charges, Monthly Maintenance Charges and Water Charges in the sum of Rs.30,000/-, Rs.24,196/-, 14,250/-, Rs.13,146/- & Rs.6,405/- respectively, totaling Rs.87,997/-, the same is also held to be unjustified at this stage and the same shall be payable by the respondent at the time of raising construction. Since after adjusting Rs.3,01,200/-, the amount payable by the respondent towards stamp duty and registration charges works out to be Rs.2,38,800/-, in view of the fact that the respondent has already taken over possession in the year 2010, it would be appropriate that the respondent gets the conveyance deed executed as the same is a statutory obligation. In fact, nothing shall be payable by the respondent as the balance amount of Rs.2,38,800/- would be adjustable against Rs.4,31,250/- refund whereof has been ordered by the District Forum and which is upheld.
13. The next question, which falls for consideration, is, whether the respondent is entitled to refund of interest on extra external development charges in the sum of Rs.3,01,200/-, reversed by the appellant on 30.06.2014. It is evident from letter dated 29.12.2009 that appellant raised demand for additional EDC in the sum of Rs.3,74,196/-, which the respondent paid vide receipts dated 30.03.2010 (Annexures C-18 & 19). Despite repeated emails by the respondent, the details as to when the EDC was deposited with the Govt. and when the same was refunded by the Government were not provided. There is no transparency qua this. Even in the account statement as on 30.4.2015 (Annexure OP-4), the EDC aforesaid has not been reflected. The appellant did not lead any evidence to the effect that as to when the amount of EDC was actually paid to the Government. No doubt, while raising demand vide its letter dated 30.06.2014, the appellant has reversed EDC in the sum of Rs.3,01,200/-. It is a fact that conveyance deed has yet not been got executed and an amount of Rs.3,01,200/- is lying with the appellant. The District Forum in concluding part of Para 12 of its order has rightly held that “…..Since the extra amount of EDC in the account of the Complainant has been reversed on 30.06.2014, therefore, the Complainant is certainly entitled to interest on the amount of Rs.3,01,200/- from the date of payment, till the refund.” The respondent is, thus, entitled to interest @9% per annum on the extra EDC amount, from the date of payment till refund.
14. The next question, which falls for consideration, is, as to whether the District Forum was right in directing the appellant to refund Preferential Location Charges, which were paid by the respondent in the year 2008. Admittedly, preferential location charges in the sum of Rs.4,31,250/- were paid by the respondent in the year 2008 due to the fact that the plot allotted to him was facing 200 ft. wide road. No cogent evidence has been produced regarding construction of road. In fact, the appellant had fairly conceded that the road has not yet been constructed. When the amount stood paid by the respondent seven years ago, non-construction of the road is a clear deficiency and it (appellant) cannot be heard saying that the same was to be constructed by the Government. Clearly, the appellant opted for a plot facing 200 Ft. wide road and it was on account of this advantage that he parted with handsome amount of Rs.4,31,250/-. When the road, in question, has not yet been constructed, we do not find any infirmity in the order of the District Forum, directing the appellant to refund Rs.4,31,250/-. The possession of the plot, in question, was handed over to the respondent on 28.10.2010 and the road, in question, was supposed to be available from the date when possession was offered. Despite payment of Rs.4,31,250/-, the respondent has been denied benefit of 200 ft. road. The District Forum has allowed refund alongwith interest @9% per annum from the date of deposit. In our considered opinion, this needs modification to the extent that the respondent is entitled to refund in the sum of Rs.4,31,250/- alongwith interest @9% per annum from the date of taking over of possession i.e. 28.10.2010 till actual payment. Further, as and when the road is constructed, the respondent will be liable to pay preferential location charges in the sum of Rs.4,31,250/-.
15. The Forum has, thus, rightly held that the appellant, was deficient, in rendering service. In the face of facts and circumstances, the compensation and litigation expenses, to the tune of Rs.1,00,000/- and Rs.11,000/- respectively, awarded by the District Forum, are just and adequate. The order of the District Forum, being legal and valid, subject to modifications indicated in Paras 12 and 14, is liable to be upheld.
16. No other point, was urged, by the Counsel for the parties.
17. For the reasons recorded above, the appeal is partly accepted with no orders as to cost. The order under challenge is modified as under:-
    1. Out of demand of Rs.5,43,252/- made vide letter dated 30.06.2014, demand qua delayed payment charges and club membership charges in the sum of Rs.1,04,096.57 and Rs.1,12,360/- respectively is held to be illegal. Further the Interest Free Maintenance Security, Electricity Connection Charges, Electrification Charges, Monthly Maintenance Charges and Water Charges in the sum of Rs.30,000/-, Rs.24,196/-, 14,250/-, Rs.13,146/- & Rs.6,405/- respectively, totaling Rs.87,997/-, shall be payable by the respondent/complainant at the time of raising construction.
    2. The amount payable by the respondent towards stamp duty and registration charges works out to Rs.2,38,800/- i.e. (Rs.4,86,000.00 + Rs.54,000.00 – Rs.3,01,200.00). After adjusting the amount of Rs.2,38,800/- against Rs.4,31,250/- to be refunded by the appellant, the appellant shall get the conveyance deed executed in favour of the respondent.
    3. The appellant/Opposite Party is directed to refund Rs.4,31,250/- to the respondent/ complainant on account of PLC alongwith interest @9% per annum from the date of taking over possession i.e. 28.10.2010 till actual payment. However, as and when the 200 Ft. wide road is constructed by the appellant/Opposite Party, the respondent/ complainant shall be liable to pay Preferential Location Charges (PLC) in the sum of Rs.4,31,250/-.
    4. The appellant/Opposite Party is directed to refund the interest on the extra EDC amount of Rs.3,01,200/- alongwith interest @9% per annum from the date of deposit, till actual payment, as directed by the District Forum.
    5. The appellant/Opposite Party is directed to pay an amount of Rs.1,00,000/- to the respondent/complainant as compensation on account of unfair trade practice and deficiency in service, as directed by the District Forum.
    6. The appellant/Opposite Party is directed to pay an amount of Rs.11,000/- to the respondent/complainant as litigation expenses, as directed by the District Forum.
    7. This order shall be complied with by appellant/Opposite Party within a period of one month from the date of receipt of its certified copy, failing which, the appellant/Opposite Party shall pay the amount mentioned at Sr.No.(iii) and (iv) above with interest @12% per annum instead of 9% per annum from the date of taking over of possession and date of deposit respectively till actual payment; and the amount mentioned at Sr.No.(v) above with interest @12% per annum from the date of filing of the complaint, till realization by the respondent/complainant, besides complying with the directions mentioned at Sr.Nos.(i), (ii) and (vi) above.
    8. All other directions, given and reliefs granted by the District Forum, in the impugned order, subject to the modifications, aforesaid, which are contrary to and, in variance of this order, shall stand set aside.
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.

December 29, 2015.

Sd/-

[JUSTICE JASBIR SINGH  (RETD.)]

PRESIDENT

 

 

Sd/-

(DEV RAJ)

MEMBER

 

 

Sd/-

(PADMA PANDEY)

        MEMBER

 

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