AI Structured Summary
Not yet generated for this judgment
Judgment
R.K. Agrawal, President Member
The present Appeal has been filed against the Order dated 16.04.2019 passed by the Rajasthan State Consumer Disputes Redressal Commission (hereinafter referred to as the State Commission), whereby the Complaint filed by Madhvi Sharma and Sh. Pooran Mal Sharma (hereinafter referred to as the Complainants) before the State Commission was allowed and the M/s. Narayan Builders & Developers (hereinafter referred to as the Appellant Builder) was directed to refund the money alongwith interest @18% p.a. from the date of deposit as the Appellant Builder was also charging the same rate of interest as per condition no. 2.12 of the Agreement. The Appellant Builder was also directed to pay ₹2,00,000/- towards compensation alongwith cost of ₹40,000/- to the Complainants within one month failing which it would carry interest @9% from the date of the Order.
Brief facts of the case are that the Appellant Builder launched a Group Housing Project in the name and style of “Urbana Jewells” (hereinafter referred to as the Project) located near Guhana Mandi, Village Madrampura, Tehsil Sanganer, Jaipur. Allured by the advertisements and assurances made by the Sales Representatives of the Appellant Builder, Pooran Mal Sharma and Vidya Sharma booked a flat in the said Project on 26.7.2007 by paying a sum of ₹2 lakhs. Flat No. 806 in Tower B was allotted. Flat Buyer Agreement was executed between the Parties on 07.04.2008. As Vidya Sharma died the name of Madhvi Sharma was substituted in the name of Vidya Sharma on 29.4.2011 and to enter the name of Madhvi Sharma the Complainant sent the Agreement to the Appellant Builder and new Agreement was sent by the Complainants to the Appellant on 04.06.2011, who after signing the same returned to the Appellant Builder on 04.06.2011. It was alleged that in the new Agreement the cost and super built area of the flat is inflated and as area of the flat is inflated preferential location charges were also increased. ₹1,75,000/- were charged illegally for parking. Sub-standard material was used. As per terms of the Agreement, the possession of the flat was to be offered within 36 + 6 months from the date of execution of the Agreement, i.e., by 04.12.2014. It was alleged that despite making payments of ₹22,97,806/- on different dates, the Appellant Builder failed to deliver the possession of the flat within stipulated period. However, vide letter dated 09.03.2016 the Appellant Builder offered possession of the Flat and asked the Complainants to clear the outstanding dues but the Complainants objected the demand made by the Appellant Builder mainly in the head of car parking charges and super built up area. Alleging deficiency in service on the part of the Appellant Builder, the Complainants filed a Consumer Complaint before the State Commission seeking possession of the Flat alongwith compensation or alternatively refund of the money with reasonable interest, compensation and cost of proceedings.
The Appellant Builder contested the Complaint before the State Commission by submitting that the earlier complaint was filed which was dismissed in non-prosecution and appeal was also dismissed as withdrawn hence, second complaint is not maintainable. No new flat buyer agreement was entered and both the agreements were similar; the Complainant has not made payment demanded vide Offer of Possession Letter dated 09.03.2016. They are ready to give possession but after making payment of the outstanding dues in terms of Offer of Possession letter dated 09.03.2016. There is no deficiency in service on their part.
After hearing both the Parties and perusal of material on record, the State Commission allowed the Complaint in aforementioned terms by observing as under:-
“There is no dispute about the fact that earlier the complainants have submitted a complaint which was dismissed in non-prosecution and appeal has also been withdrawn but complainant has prayed by way of application to admit the second complaint as earlier complaint was dismissed due to non-appearance of the advocate.
It is also not in dispute that first complaint has not been decided on merit and when possession of the property has not been handed over to the complainant they have continuous cause of action and when cause of action is still available to the complainant, the second complaint cannot be held not maintainable and contention of the non-applicant is not acceptable.
The other contention of the non-applicant is that as per condition no. 2.1 of the agreement they were entitled to increase or decrease the super built area. The contention of the non-applicant seems to be sound on the first look but condition no. 2.1 clearly states that super built area may reduce or increase at the time of final measurement on completion of the flat duly certified by the nominated architect of the company but here in the present case the non-applicant has not submitted the report of architect who could certified that the super built area is increased due to final measurement and this may also be noted that the complainant has paid almost total amount of the sale price and parties are in agreement on the point that complainant had paid 13 installments of construction linked payment plan meaning thereby that construction has almost complete. When foundation has been lead and even the plaster work and flooring work is completed, there could be no occasion in increase the area of the flat and it can very well be concluded that with malafide intentions the non-applicant has increased the super built area without any actual basis of measurement.
The complainant has rightly pointed out that non-applicant is not entitled to charge ₹ 1,75,000/- for parking charges and even in the agreement Anx. 5 no particulars are being given for charge of ₹ 1,75,000/- which shows malafide of the non-applicant. As per agreement the built up area of the flat was 1098.25 sq.ft. and super built up area was 1372.81 whereas as per cost sheet Anx. 6 the built up area is shown 1115.05 and super built up area is increased to 1486.68 which shows the deficiency on the part of non-applicant and it is not in dispute that preferential location charges were calculated as per sq.ft. Hence, these charges are bound to increase.
The other contention of the complainant is that sub-standard material is being used but to support this contention no evidence has been submitted. Even no lab report or report of any technical person is being submitted. Hence, this contention could not be accepted as proved.
The contention of the non-applicant is that he issued demand note vide Anx. 6 but as the complainant has not paid the money he cannot ask for the possession but as already been considered the non-applicant is not entitled to ask increased demand and the further contention of the complainant is that construction is not complete. He visited the side on 23.3.2016 to controvert this the non-applicant has not submitted the completion certificate. Even in the reply to the complaint this has been said that construction work has been started but this is not the contention of the non-applicant that construction is complete or he is ready to give possession of the property to the complainant.
In view of the fact that the property is not still complete, the complainant has rightly demanded the refund of the money and complainant cannot be forced to wait for the indefinite period.
The other contention of the complainant is that he entered into agreement with the non-applicant in April 2008 which was returned to the non-applicant to enter the name of present complainant Madhvi Sharma and non-applicant has supplied them another set of agreement. The contention of the non-applicant is that both the agreement are similar but agreement which has been entered between the parties in 2008 has not been placed on record which gives rise to adverse inference against the non-applicant.”
Aggrieved by the Order passed by the State Commission, the Appellant Builder has filed the present Appeal.
Ms. Suchitra Kumbhat, learned Counsel appearing on behalf of the Appellant submitted that there is no deficiency in service on their part as the Complainants have failed to clear the outstanding dues which were demanded by Offer of Possession letter dated 09.03.2016. Still, they are ready to give the possession of the flat but after paying the remaining dues of ₹5,16,618/- as per possession letter dated 09.03.2016. It was prayed that the Order passed by the State Commission be set aside and the Appeal be allowed.
Per Contra, Mr. P.M. Sharma, Respondent No. 2, the father of Respondent No. 1, submitted that they want to take possession of the Flat and prayed that the Appellant Builder be directed to deliver the possession of the Flat, complete in all respects; pay delay compensation in the form of interest @18%; refund ₹1,75,000/- received towards parking charges, not to charge for increase in Super Built Up area post construction as this was increased without their prior consent and also sought additional compensation of ₹1,00,000/- towards harassment.
I have heard the Ms. Suchitra Kumbhat, learned Counsel for the Appellant, Mr. Pooran Mal Sharma, Respondent No. 2, the father of Respondent No. 1 and have given a thoughtful consideration to the various pleas raised by them.
All the contentions raised by the Appellant Builder have been dealt in detail, by the State Commission in the impugned Order. As far as the compensation awarded by the State Commission is concerned, it is on the higher side.
It is not in dispute that despite having received the substantial amount of sale consideration, the Appellant Builder failed to deliver the possession of the Flat within stipulated period. In view of Judgment passed by this Commission in Emaar MGF Land Ltd. & Ors. vs. Amit Puri [II (2015) CPJ 568 NC], wherein it was laid down that after the promised date of delivery, it is the discretion of the Complainant whether he wants to accept the offer of possession, if any, or seek refund of the amounts paid with reasonable interest, the Complainants have both the options whether they want possession of the flat with delay compensation or refund of the amount with reasonable interest, which in view of the various judgments passed by the Hon’ble Supreme Court could be in the form of interest @9% p.a.
In view of the Judgment passed by the Hon’ble Supreme Court in Civil Appeal No. 12238 of 2018 Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan & Connected Matter decided on 02.04.2019 and the decision of the Hon’ble Supreme Court in Civil Appeal No. 3182 of 2019 Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra decided on 25.03.2019, in which it has been held that in a case of an unreasonable delay in offering possession of the allotted flat, the consumer cannot be compelled to accept possession at a belated stage and is entitled to seek refund of the amount paid by him to the builder with compensation, the Complainants are entitled for refund of the money alongwith reasonable compensation in the form of interest @9% p.a. on the entire deposited amount.
As far as the contention regarding payment of increased super built up area, the Complainants are obligated to pay the same in terms of the Agreement. So far as the Car Parking charges are concerned, they are also liable to pay the Car Parking Charges in view of the judgment passed by the Hon’ble Supreme Court in “Wing Commander Arifur Rahman Khan and Aleya Sultana and Others vs DLF Southern Homes Pvt Ltd and Others [Civil Appeal No 6239/2019 decided on 24 August 2020]”.
For the reasons stated hereinabove, the present Appeal is partly allowed and the Order dated 16.04.2019 passed by the State Commission is modified to the extent that if the Complainants want to take possession of the Flat, they will have to clear the outstanding dues in terms of offer of possession letter dated 09.03.2016.
(i) The Appellant Builder shall pay delay compensation in the form of interest @9% p.a. on the amount deposited by the Complainants from the expected date of delivery, i.e., 04.06.2014 till the date of offer of possession, i.e., 09.03.2016 within six weeks from today. The Appellant Builder shall not charge any holding charges or delayed charges from the Complainants as the delay compensation has been awarded till the date of offer of Possession.
(ii) The Appellant Builder shall work out the Compensation after making adjustment of the outstanding charges payable by the Complainants as mentioned in the Offer of Possession letter dated 09.03.2016 and make the balance payment of the Compensation, if any, to the Complainants within six weeks from today;
(iii) After adjusting the delay compensation, if any amount remains payable by the Complainants, then the Complainants will make the payment of the shortfall to the Appellant Builder within 2 weeks before getting the delivery of the possession of the Flat;
(iv) The Appellant Builder shall deliver the possession of the Flat to the Complainants within four weeks after adjustment of delay compensation and outstanding dues, failing which the delay compensation will increase from 9% to 12% p.a.
Or alternatively; if the Complainants want to take refund of the money, the Appellant Builder is directed to refund the entire amount deposited by the Complainants, i.e., ₹22,97,806/- alongwith interest @9% p.a. from the respective date of deposit till realisation, within 8 weeks from today.
In view of the judgment passed by the Hon’ble Supreme Court in “DLF Homes Panchkula Pvt. Ltd Vs. D.S. Dhanda, II (2019) CPJ 117 (SC)”, wherein it is observed that when interest is awarded by way of damages awarding additional compensation is unjustified, the Complainants shall not be entitled for any other compensation. Keeping in view the facts and circumstances of the case, there shall be no order as to costs.