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Judgment
M. Shreesha, J
This Complaint has been filed under Section 21 (a) (i) of the Consumer Protection Act, 1986 (in short "the Act") against the Veena Cooperative Group Housing Society Ltd. (hereinafter referred to as "the Society"), the Managing Committee of the Society and the Registrar Cooperative Societies, seeking the following reliefs:
"Direct the Opposite Party to hand over possession of the flats to the complainants after carrying out various outstanding and incomplete works and rectifications, making good defects, deficiencies and shortcomings within a specified times;
Grant a sum of Rs.1,58,37,164/- (towards principal amount of Rs.26,44,000/- along with interest of Rs.1,31,93,164/-) at the rate of 18% per annum compounded along with pendent lite and future interest at the rate of 18% per annum compounded till the date of actual realization of the payment.
Grant a sum of Rs.22,46,400/- towards actual rent paid by the Complainant along with pendent lite and future compensation at the same rate till the date of actual realization of the amount.
Grant a sum of Rs.25,00,000/- towards damage and compensation, for harassment, mental anguish and discomfort along with pendent lite and future interest, till the date of actual realisation.
Grant Rs.3,00,000/-towards cost of litigation to the complainants and
Grant to the complainants such other and/ or further relief (s) as this Hon'ble Commission may deem fit in the facts and circumstances of the present case and render justice."
The brief facts as set out in the Complaint are that the Complainant and his father for the purpose of owning a residential dream house became a joint member of the Society registered under the Cooperative Societies Act for providing residential flats to its members. In respect of the proposed construction of multi storied residential building on Plot No. 5D, Sector 22, Dwarka, the second Opposite Party approached the Complainant and showed them a brochure with regard to the nature and quality of construction of apartments, the fixtures, materials which were to be used and stated that the possession would be handed over in the year 2006. The Complainant and his father became joint members in the year 2004 itself and booked a residential flat in "Rupali Apartment" of approximately 1850 sq. ft. and paid ₹3,00,000/- to the society at the time of becoming the member. It is stated that the total cost of the flat is ₹22,00,000/-, in which ₹4,00,000/- were escalation/ equalisation amount. A copy of the share certificate was handed over to the Complainant and his father. The Complainant who is a Government Servant left his membership in favour of his father Mr. Bharat Bhushan Kumar, which was confirmed in the meeting of management on 22.07.2007.
A housing loan was taken on 12.09.2007 and the balance amount of ₹19,00,000/- was paid to the Society and no due certificate was issued to the Complainant's father. It is stated that the Society informed the Complainant's father on 30.04.2011, that they had received a deficiency memo letter dated 21.09.2010 from the third Opposite Party that residential proof was required. When the Complainant's father informed them that he had already submitted his residential proof, he was once again told that the third Opposite Party required residential proof prior to three years from the date of membership. Being a senior citizen and unable to take this exertion the Complainant's father decided to transfer his right in the said flat to his sole son i.e. to the Complainant and on 12.07.2011, the membership was transferred to Mr. Animesh Kumar, the Complainant herein, who was also the first joint member of the Society.
It is stated that a fresh demand of ₹4,44,000/- was illegally raised though NOC was earlier issued. All required papers namely, indemnity bond, affidavit and address proof of the Complainant prior to three years was also submitted on 20.07.2011 itself. On 31.03.2012, the first Opposite Party informed the Complainant that his name was not recommended for the draw of lots as he did not submit his residential proof. On the Complainant's objection, the second Opposite Party informed him that one flat was earmarked for him and it would be transferred to him and the formality is required by the third Opposite Party would be taken care of. On 01.04.2012 a meeting was called for and the membership of the Complainant was approved. For more than eight months the second Opposite Party did not take any steps to transfer the membership of Mr. Bharat Bhushan Kumar, to his son i.e. the Complainant. On 02.04.2012, the Society informed the Complainant that DDA has scheduled 11.04.2002 for the draw of lots and his name was not included in the said draw.
Once again the Complainant objected and the second Opposite Party on 08.04.2012 submitted the documents to the third Opposite Party along with the extracts of the minutes of the management committee meeting held on 01.04.2012, on which date the Complainant's membership was approved. Subsequently on 21.01.2013 the third Opposite Party demanded indemnity bond from the Complainant though the Complainant had sent the same and informed them vide letters dated 20.04.2012, 17.12.2012, 24.01.2013 and resolution dated 22.04.2013. Once again on 31.01.2013 the third Opposite Party demanded the indemnity bond. It is stated that the entire payment was made but the possession was not given and therefore a legal notice dated 06.04.2014 was sent but there was no response. The promised date of delivery of possession was in the year 2006 and therefore the Complainant approached this Commission seeking the aforenoted reliefs.
The Opposite Parties despite service of notice did not choose to appear before this Commission and vide order dated 04.05.2018 the Opposite Parties were proceeded ex parte and their right to file the Written Version was closed. In IA/1395/2018, a specific direction was given to the society to keep one flat reserved for the Complainant on his submission that the entire amount was paid. Thereafter on 23.08.2018, since the entire pleadings were complete and there was no application filed by the Opposite Parties seeking to set aside the order, the matter was heard on 12.12.2018.
The Complainant filed their Affidavit by way of Evidence and marked Exhibit-1 (copy of the share certificate), Exhibit-2 (copy of the proof of initial payment of ₹3,00,000/-), Exhibit-3 (demand letter by the OP), Exhibit-4 (copy of the proof of initial payment of ₹19,00,000/-), Exhibit-5 (proof by way of letter by the OP showing nil payment due to the complainant), Exhibit-6 (copy of the demand letter dated 07.02.2008 for ₹4,44,000/-), Exhibit-7 (proof of payment of ₹4,44,000/-), Exhibit-8 (copy of proofs that showing the OP No. 1 had submitted all the requisite documents to OP No. 2), Exhibit-9 (Legal Notice sent to the OP No. 1), Exhibit-10 (representation by the complainant dated 27.03.2013), Exhibit-11 (representation by the complainant dated 24.08.2013), Exhibit-12 (representations by the Complainant dated 03.12.2015), Exhibit-13 (Letter dated 21.07.2016 written by the OP-1 to the OP-2 for clearance of membership), Exhibit-14 (Letter dated 26.08.2016 written by the OP-2 to the OP-1 for submitting fresh documents), Exhibit-15 (representation by the Complainant dated 21.09.2016) and Exhibit-16 (representation by the Complainant dated 21.09.2016) on his behalf.
Since the pleadings made in the original Complaint are not rebutted and having regard to the receipts and the communication filed along with the Affidavit of evidence, we are of the considered view that despite making the entire payment to the first Opposite Party, the possession was not given, though the promised year of delivery of possession was in year 2006.
It is also relevant to note that the Complainant got issued legal notice dated 06.01.2014 for which there was no response. It is also relevant to mention that there was a series of correspondence between the Complainant and the Opposite Parties vide letters dated 23.07.2007, 07.02.2008, 10.07.2008, 11.07.2011, 28.08.2011, 11.09.2011, 20.02.2012, 02.04.2012, 24.01.2013, 22.04.2013, 25.06.2013, 04.07.2013, 27.07.2013, 24.08.2013,21.07.2016, 26.08.2016, 08.09.2016 and 21.09.2016.
In the final reminder dated 11.07.2011 a demand for ₹4,44,000/- was made and it was categorically mentioned that only the names of those members who have paid the full amount towards cost of flat shall be forwarded and considered for draw of lots and the names of members who have not paid 100% of their due amount may be detained. Despite the Complainant having paid the amount of ₹4,44,000/-, he still did not receive possession. It is observed from the communications that despite making the entire payment the Opposite Parties made an illegal demand vide letter dated 11.09.2011, wherein an amount of ₹4,78,175/- was demanded towards outstanding interests. In this letter it is noted that the penal interest of 18% p.a. was charged for delay in the payments. Thereafter on 02.04.2012, another demand of ₹9,22,175/- was made and still thereafter on 20.08.2011 a demand of ₹9,86,167/- was made against interest.
As pleaded in the Complaint repeated communication was made by the society on 24.01.2013, asking for indemnity bond, which have already been furnished to them. Vide letter dated 22.04.2013, society demanded an amount of ₹2,24,423/- towards land and construction money/ interest/ penal interest and thereafter on 25.06.2013 and 04.07.2013 an amount of ₹7,02,598/- was demanded towards land and construction/ interest and ground rent of ₹11,130/-, which was sought to be paid before 25.08.2013. On 08.09.2016 a notice was issued through speed post to the Complainant for payment of outstanding dues stating that an amount of ₹10,12,058/-, which includes interest and penal interest of ₹5,64,247/- and ₹4,44,399/- respectively. The receipts on record evidences that the entire sale consideration has been paid apart from the demanded amount of ₹4,44,000/-, which was paid on 19.04.2013 and for which a receipt was also issued.
Having regard to the fact that No Due Certificate was earlier issued, the Complainant's name was included as a Member, the Indemnity Bond was furnished, the receipts on file evidence the payment of the entire sale consideration, we are of the considered view that the Opposite Parties were deficient in their services and we direct them to deliver possession of the flat to the Complainant within six weeks from the date of this order together with interest @ 9% p.a. from the promised date of delivery of possession till the actual date the possession is delivered. We also award cost of ₹25,000/-. Time for compliance is six weeks, failing which the amount will carry interest @ 12% p.a. for the same period.