Anjana Sharma & Anr vs M/s SVP Builders (I) Ltd

Dr. Sadhna Shanker, Member

These two cross appeals have been filed under Section 19 of the Consumer Protection Act, 1986 (for short “the Act”) assailing the Order dated 21.07.2017 passed by the State Consumer Disputes Redressal Commission, Delhi (hereinafter referred to as the ‘State Commission’) in complaint No. 186 of 2011, whereby the complaint was partly allowed.

Since these two appeals have arisen from the same impugned order, they are being decided by this common order.

Mrs. Anjana Sharma and Mr. Rajesh Sharma (hereinafter referred to as the ‘complainants’) have filed appeal no. 1774 of 2017 for enhancement of compensation while M/s SVP Builders (I) Ltd. (hereinafter referred to as the ‘builder’) has filed an appeal against the impugned order dated 21.07.2017 of the State Commission.

There is a delay of 30 days in filling appeal no. 2008 of 2017.

In the interest of justice and considering the reasons mentioned in the application for condonation of delay, the delay in filing the appeal is condoned.

The facts, in brief, are that on 11.02.2007 the complainants entered into a flat buyers' agreement with the builder for purchase of a flat, having super area of 1850 per sq. ft. for a sale consideration of Rs.1640/- per sq. ft. in the project, namely, 'Gulmohur Greens Projects', 95, Katori Mill, ’Mohan Nagar', Ghaziabad, launched by the builder. It is alleged that the possession of the flat had admittedly been handed over to the complainants on 11.11.2010. The grievance of the complainants is that the builder vide its letter dated 25.01.2010 called upon the complainants to receive possession of the flat within ninety days but no penalty for delayed possession @ Rs.5/- sq. ft. per month of the super area along with interest @ 24% p.a. was taken into account. On the contrary, the builder concealed the fact that the flat in question was not habitable. The complainants’ further grievance is that the builder vide its letter dated 03.11.2010 demanded additional amount of Rs.1,07,750/- stating that the super area of the flat had increased by 50 sq. ft. and accordingly the said additional payment @ Rs.2155/- per sq. ft. for an area of 50 sq. ft. was made while the covered area of the flat in question is the same. It is further alleged that that the builder illegally demanded EDC @ 150 sq. ft. of the super area of 19 sq. ft. The said amount worked out to Rs.2,85,000/-. It is further alleged that the complainants further submitted that they were forced to pay an amount of Rs.80,000/- as balance amount which never existed on record. The complainants’ further grievance is that they were forced to pay an amount of Rs.1,89,629/- towards balance payment @ 5% of the basic price required to be paid at the time of taking possession. The said amount charged from the complainants was Rs.1,89,625/- against an amount of Rs.1,51,700/-. Thus, the balance of Rs.37,925/- was claimed from the complainants. In all, the complainants have claimed an amount of Rs.5,10,675/- along with interest at the rate of 24% per annum. Besides this, penalty for delayed possession @Rs.5/- sq.ft. per month w.e.f. 01.01.2009 to 11.11.2010 is claimed.

After appreciation of the facts of the case, the State Commission allowed the complaint and directed the builder to refund an amount of Rs.4,72,750/- along with interest @8% p.a. from the date of filing of complaint till the date of its realization. The State Commission also awarded an amount of Rs.2,00,000/- towards harassment, inconvenience, sadness, anguish and mental agony.

Both the parties filed appeals against the said order dated 21.07.2017 of the State Commission.

Before us, the counsel for the complainants argued that the affidavit and response have been filed by a person not authorized by a company to do so, not being a director. He has also argued that the builder committed a fraud with the complainant by selling of the original flat at market price and making profit on this account and that this needs thorough investigation.

The counsel for the builder argued that the complaint has been filed with malafide intention to extract money illegally even after taking over the possession on 11.11.2010 and No Claim Certificate (NCC) had been issued in this regard by the complainants, which clearly shows no fault on the part of the builder. The complainants had approached the State Commission by alleging false facts and there is no deficiency in service on the part of the builder.

Further, He further argued that as per agreement executed between the parties, it was agreed that the super area of the flat may increase or decrease and in case of increase, the allottee(s)/complainants have to pay the additional cost and/or in case of decrease in the area,  the builder will refund the proportional amount of the area reduced.  As per actual measurement, an area of the allotted flat was increased to 50 sq. ft. and the builder had rightly charged for the increased area as shown in the Sale Deed dated 10.07.2015 itself wherein the total super area was 1900 sq. ft. in place of 1850 sq.

We have considered the rival contentions and perused materials available on record. The question which falls for our consideration is whether there is deficiency in service on the part of the builder.

After considering the facts and circumstances of the case and arguments presented by both parties and examining the evidence on record, it is an admitted fact that the complainants entered into a flat buyers’ agreement with the builder on 11.11.2007 with super area as agreed was 1850 per sq. feet and sale consideration of the flat was 1649 per sq.ft. It is also an admitted fact that possession has been handed over to the complainants on 11.11.2010. It is seen that the builder charged Rs.1,07,750/- for increase in super area by 50 sq.ft. and the same was paid by the complainants. It is seen that builder has not filed any official document that supports his claim that the pillar which were increased by 9 inches to 12 inches by the Ghaziabad Development Authority or that the staircase were widened as per the Fire Norms. Therefore, in absence of any material on record in support this contention, this plea of the builder is rejected. The complainants are liable to get refund of Rs.1,07,750/- towards excess payment made in lieu of the alleged increase in the carpet area.

Further, with regard to the contention of the complainants that payment of Rs.2,85,000/- towards EDC @Rs.150/- per sq.ft. was illegal, it is seen that clause 14 of the buyer’s agreement signed by the complainants provides for payment of proportionate development charges by each allottee. In this regard, the State Commission has observed as follows:

“It may be mentioned here that the present flat buyer s agreement came into existence in lieu of a flat earlier allotted to the complainants in the project 'Gulmohar Enclave Nehru Nagar Ghaziabad. Parties had agreed to the change of the flat from Gulmohar Enclave Project to Gulmohar Green Project. The agreement entered into In respect of Gulmohar Green Project provided that the price of the flat would be inclusive of EDC. At the time of switching over to the new agreement, parties preferred to have a payment annexure giving the details of by the complainants. There is no reason as to why charges should not find a mention in the annexure. OP could have mentioned the payment on account of EDC charges in the said payment annexure. The payment annexure shows that the parties had not agreed for the payment of EDC charges (EDC). For these reasons, I am, of the considered opinion that the payment of the amount of Rs.2,85,000/- charged on account of EDC is again not justified.”

We see no reason to interfere with the finding of the State Commission with regard to the EDC charges.

As regards the complainants’ allegation that Rs.80,000/- were charged in excess, it is seen that that the builder has not replied or justified this abovementioned amount in any manner. Hence complainants are entitled for refund of the same.

Lastly, regarding the refund of the excess amount of Rs.37,925/- (Rs.1,89,625- Rs.1,51,700/-), the payment annexure relied upon by the parties refers to the payment of Rs.1,89,625/-. Being agreed to by both the parties, the complainants cannot at this stage deny the liability to pay. Therefore, complainants are not entitled for the refund of the above mentioned amount.

As these payments were not due to the builder in any manner, the same needs to be refunded to the complainants, and it would be appropriate that the rate of interest on these refunds will be 9% form the respective dates of deposit till its realisation.

The Hon’ble Supreme Court in the case of DLF Homes Panchkula Pvt. Ltd. vs. D.S. Dhanda, in CA Nos. 4910-4941 of 2019 decided on 10.05.2019 has held that multiple compensations for singular deficiency is not justifiable. Therefore, the award of compensation of Rs.2,00,000/- for mental agony and harassment granted by the State Commission is found to be not tenable.

In view of the above, the order dated 21.07.2017 of the State Commission is modified as under:

a. The builder shall refund the total amount of Rs.4,72,750/-  to the complainants with rate of interest at 9% per annum from the respective date of deposits till realisation.

b. The compensation of 2,00,000/- awarded by the State Commission for mental agony and harassment is set aside.

c. The builder shall pay Rs.25,000/- as cost of litigation.

The order shall be complied with within six weeks from today, failing which; it shall carry interest at the rate of 12% per annum.

Accordingly, the both the appeals, no. 1774 of 2017 and No. 2008 of 2017, are disposed of. All pending applications, if any, stand disposed of.