Mohd. Rafat Khan vs SRS Real Estate Ltd

This revision petition has been filed by the petitioner Mohd. Rafat Khan against the order dated 07.05.2018 of the State Consumer Disputes Redressal Commission, Delhi, (in short 'the State Commission') passed in FA No.1078 of 2014.

Brief facts of the case are that the complainant/petitioner booked a flat, measuring 1200 sq ft @ Rs.1300 sq.ft. in SRS residency in Sector 88 Faridabd, for a total basic sale price of Rs.18,00,000/-.On 28.5.2007 he was issued a letter for allotment demanding 2nd instalment/allotment amount of Rs.2 lakhs and EDC charges of Rs.1,69,200/-.As per the payment plan which is construction linked, letter dated 23.10.2008 shows that OP received Rs.16,14,825/- till the construction of 7th floor with 10% remaining unpaid till 30.11.2008 for flat No.904, in tower C1. After paying the last instalment, when complainant went to the site, he found out that there was no construction.OP/respondent accepted the same and gave assurance to complete the project in 2010 June, instead of 30.06.2009 with grace period of 6 months.As the project was not completed within time, complainant demanded penalty of Rs.5/- per sq.ft.Allegedly, amount of Rs.9,03,174/- is due from the complainant as on 20.05.2011.As a result OP cancelled the allotment and asked complainant to collect refund vide letter dated 20.5.2011.

Aggrieved, complainant filed consumer complaint bearing No.550/11 before the District Forum and the District Forum vide its order dated 21.10.2014 passed the following order:-

"In the facts and circumstances of the case, while holding OP guilty of deficiency and unfair trade practice, direct OP to restore the allotment cancelled, and raise fresh demand due till 02.05.11, with delayed interest liability at that time and after adjusting 18% interest since 05/11 till today, offer possession of flat booked to complainant.

In case, OP is unable to offer the same flat, it will offer another flat at same cost in other tower acceptable to complainant.In case, it all is not possible, OP will return the entire sum deposited by complainant with interest of 20% from date of deposit till date of payment.

The Order shall be complied within 30 days of the receipt of the copy of the order; otherwise action can be taken under Section 25/27 of the Consumer Protection Act."

Aggrieved by the order of the District Forum, the petitioner/complainant preferred an appeal bearing No.1078 of 2014 & 1118/2014 before the State Commission and the State Commission vide its order dated 07.05.2018 passed the following order:-

"In view of the above discussion both the appeals are partly accepted, impugned order is modified to the effect that OP would hand over the possession of the flat to the complainant after the complainant makes payment of balance amount, without any interest.However, the complainant would pay for extra space and EDC/enhanced EDC.The claim of the complainant for interest from the date of payment till possession and/or compensation by way of penalty for delayed possession is declined."

Aggrieved by the order of the State Commission the complainant has filed the present revision petition.

Inspite of the service on the respondent/opposite party none appeared on behalf of the opposite party and therefore, the petitioner, who was present in person was heard.The petitioner stated that the State Commission though passed a reasonable order by waiving the interest on the amounts payable by the complainant as well as payable by the opposite party on the penalty payable for delay in handing over the possession, the State Commission has passed additional direction to the complainant to pay cost for the extra space and for EDC/enhanced EDC though there is no reference in this regard in the whole body of the judgment.The reference to payment for additional space and for EDC/enhanced EDC is not supported by mention of any particular document or any argument in the body of the judgment.Agreement has been for total consideration of the flat and nothing extra is required to be paid to the opposite party beyond the agreement.Hence, this part of the order of the State Commission is totally uncalled for and needs to be set aside.

I have considered the assertions made by the petitioner and have examined the material on record.The complainant informed during the argument that a letter has been sent by the opposite party stating that the total final area of the flat is slightly more than the original area and therefore the complainant is required to pay additional amount for the extra space.The petitioner further stated that some demand has also been raised for the EDC.Though nothing is mentioned in the body of the judgment of the State Commission in this regard, however, it can be inferred that there must have been some oral arguments in this regard which have not been described by the State Commission in the body of the judgment but the same has been incorporated in the order.Be that as it may, fact remains that if there is some extra area included in the total area of the flat after the finalization of the project and the complainant is getting the benefit of this extra area, the complainant should be liable to pay the cost of this excess area.It is obvious that this excess area will have to be paid by the complainant on the rate which was originally fixed for the flat.

So far as the EDC or enhanced EDC is concerned, the EDC is generally included in the original cost estimate mentioned in the agreement as total consideration for the flat.However, if there is any enhanced EDC levied by the Municipal Authority, then that can be demanded separately as the same was not included in the original cost estimate. Thus, the builder cannot demand any charges for the EDC until there is some enhancement by the Municipal Authority and then only the enhanced component can be demanded.

Based on the above discussion, the order of the State Commission is modified to the extent that "EDC/enhanced EDC" mentioned in the operative portion of the order of the State Commission, should be read as "enhanced EDC" only.Hence, two things are further clarified.The first is that the complainant would be liable to pay cost of extra space only at the rate which was fixed in the original agreement and second that the "enhanced EDC" has to be supported by order from the concerned Municipal Authority.With these modifications and observations the revision petition No.1777 of 2018 stands disposed of.