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Judgment
Dr.Inder Jit Singh, Member
The present Consumer Complaint (CC) has been filed by the Complainant against the opposite party as detailed above, inter aila praying for:-
i. to hand over the physical possession of the apartment complete in all respect and execute a Sub Lease Deed.
ii. to pay interest @18% on the amount deposited for the period of delay from 31.12.2015 till the filing of the petition and pay future interest @18% till the date of handing over of the actual physical possession.
iii. to charge maintenance from the date of handing over of the actual physical possession of the said flat and cancel the demand of Rs.97,932/- raised towards the maintenance since 01.11.2017.
iv. to refund Rs.2,02,860/- extra charged on account of principle due along with interest @18% from 09.04.2019 till the date of realization of the amount paid.
v. to compensate the complainant towards the rent paid by the complainant to the tune of Rs.12,17,700/- since January 2016 till the date of filing the complaint and to pay rent to be paid till the handing over the possession.
vi. Rs.10,00,000/- as compensation on account of mental agony and harassment.
vii. to pay Rs.2,00,000/- towards cost of litigation.
Notice was issued to the opposite party on 09.07.2019 giving them 30 days’ time to file their written statement.
It is averred/stated in the complaint that:-
i) That the complainant booked a flat on 05.02.2014 in the in the upcoming project of the OP namely “Golf Avenue-II” situated at Golf City, Plot No. 3, Sector-75, Noida, for a total consideration of Rs.71,51,200/- admeasuring 1455 sq. ft. having Unit No. 1501 in Tower 6. A provisional allotment letter dated 03.04.2014 was issued. Flat Allottee(s)’ Agreement dated 04.04.2014 was executed between the parties. The complainant paid Rs.31,75,983/- till 28.05.2014. The rest of the amount was to be paid at the time of possession i.e. on 31.12.2015. The Complainant made payment of Rs.41,20,551/- in July 2017. By this time, the complainant paid Rs.72,96,534/-. As per clause 31 of the Flat Allottee Agreement, he OP was liable to handover the possession of the unit in December 2015 with a grace period of six months for force majeure circumstances and in case of the reason for delay other than force majeure, the OP shall pay a compensation of Rs.5/- per sq.ft on super area per month of delay.
ii) The OP failed to deliver the possession on the said date and nothing was informed to the complainant about the delay. After a delay of 10 months, the OP issued a letter dated 27.10.2016 informing the complainant that the OP is initiating the process of possession. OP without informing the status of the project and date of delivery, demanded the final payment amount, to be deposited within 30 days of receipt of the said letter dated 27.10.2016. The complainant approached the bank for release of the remaining amount towards the said flat but the bank refused as the letter of offer of possession and the completion certificate was not enclosed with the final demand letter. The complainant asked the OP through a letter dated 18.11.2016 for date of possession, Occupation Certificate and final measurements of the flat. But no reply was received and the complainant kept reminding about the same. On 22.06.2017 the complainant received OC and thereafter the remaining payments were released by the bank within 15 days of receipt of the completion certificate and the Complainant made payment of Rs.41,20,551/- in July 2017. By this time, the complainant paid Rs.72,96,534/-.
iii) That post making the final payment in July 2017, neither offer of possession was made by the OP nor any date was disclosed to the complainant.
iv) On 25.01.2019, the OP called upon the complainant to make the remaining payments and get the Sub Lease Deed Registered on making the payment for stamp duty. On demand of the OP, the complainant paid Rs.2,00,000/- on 08.04.2019 and Rs.2,860/- on 09.04.2019, but OP has not yet issued the receipt of the said payment. After this payment, the complainant again received a new demand of Rs.3,57,930/- on the pretext of the payment to the farmers. Same was also paid by the complainant on 18.04.2019, but no receipt has been provided to the complainant till date. The complainant also paid Rs.3,57,600/- as stamp duty and Registration charges and also deposited Rs.71,512/- as TDS for the sale consideration, but no receipt has been issued.
v) On 23.04.2019, the complainant was called for registry and was informed that Rs.97,932/- is pending towards the maintenance charges. OP demanded maintenance for the period 01.11.2017 to 31.10.2019, which the complainant refused to pay and registry was not got done. The complainant requested the OP for registry but the same was not done. The complainant sent a legal notice on 31.05.2019, but there was no response.
vi) The OP failed to give physical possession of the said flat and the complainant has to bear the rental and EMI of the loan amount simultaneously. Hence, the complainant filed complaint before this Commission.
vii) The OP is guilty of deficiency in service & unfair trade practices.
OP in their written statement/reply stated that :-
i. The complaint is not maintainable as the complainant is not a consumer. The complainant is a speculative investor and is intentionally not taking possession of flat, which was offered for possession to him by OP in October, 2016. The Complainant has not approached this Commission with clean hands and has made attempts to mislead the Hon’ble Commission by concealing material information and distorting facts.
ii. The complaint is barred by limitation and is liable to be dismissed as it has been filed beyond the time period prescribed under Section 24(A) of the Consumer Protection Act, 1986.
iii. The consideration value of the flat is less than one crore and it is below the pecuniary jurisdiction of this Commission.
iv. The OP denies all the averments, statements, allegations, claims and submissions made in the complaint.
Evidence by way of affidavit was filed by the complainant on 26.10.2021 and affidavit of evidence was filed by the OP on 25.04.2022 broadly on the lines of averments made in the complaint.
Heard counsels of both sides. The details of the flat allotted to the Complainant/other relevant details of the case are given in the Table below:-
Sr No
Particulars
1
Project Name/Location etc
Golf Avenue –II, Plot 3, Sector 75,
Golf city, Noida, U.P.
2
Apartment no.
1501, tower 6
3
Size (Built up/Covered/Super
Area)
2340 sq.ft. approx..
4
Date of application
05.02.2014
5
Date of signing Flat Allottee(s)’
Agreement
04.04.2014
6
Committed date of possession as per Buyers’ Agreement (with Grace period, if any)
30.06.2016
7
D/o Offering Possession
27.10.2016
8
Total Consideration
Rs.71,51,200/-
9
Amount Paid
Rs.72,96,534/-
10
D/o Filing CC in NCDRC
04.07.2019
11
D/o Issue of Notice to OP
09.07.2019
12
D/o Filing Reply/Written Statement by OP
23.09.2021
13
D/o filing Rejoinder by the Complainant
29.10.2021
14
D/o Filing Evidence by way of
Affidavit by the Complainant
26.10.2021
15
D/o Filing Evidence by way of
Affidavit by the OP
25.04.2022
Heard counsels of both sides.
The contention of OPs that this Commission lacks pecuniary jurisdiction is not valid. Under Section 21 of the Act, Commission has the jurisdiction where value of goods and services and compensation, if any, claimed exceeds Rupees one crore. The objection that the Complaint is barred by limitation is also not accepted. The OPs have failed to deliver the possession of the unit to the complainant till date and therefore, the cause of action is continuing. The contention that complainant is not a consumer as he has purchased the unit for speculative investment purpose is also rejected as no such evidence has been adduced by the OPs in this regard.
As per FBA, the committed date of possession was December, 2015. In addition, there is a grace period of six months. Hence, the Developer was obliged to give the possession by June 2016. The offer of possession was made in October 2016. The delay is only for four months. There was some delay in making balance payments by complainant on receipt of intimation of offer of possession as complainant approached his bank for release of remaining amount, but bank asked for certain documents like copy of occupation certificate etc., which were supplied by OP with some delay. Thereafter the balance payments were released by the bank to OP. However, post final payments, possession has not been delivered yet as OP demanded certain additional payments, including maintenance charges from 01.11.2017 to 31.10.2019.
For the reasons stated hereinabove, and after giving a thoughtful consideration to the entire facts and circumstances of the case, various pleas raised by the learned Counsel for the Parties, the Consumer Complaint is allowed/disposed off with the following directions/reliefs: -
(i) The OP shall hand over the possession of the flat in question, complete in all respects, as per the specifications, facilities and amenities promised in the brochure and/or FBA within one month of this order alongwith delay compensation in the form of simple interest @6% per annum from 1st July 2016 to 27th October 2016.
(ii) The OPs shall pay a sum of Rs.25,000/- as cost of litigation to the complainants.
(iii) OP shall not charge any maintenance or holding charges till the date of handing over of actual physical possession.
(iv) Complainant will be liable to pay balance dues, if any, as per terms & conditions of agreement, including interest for delayed payments, if any, @9% p.a. within 15 days of demand by OP.
(v) If actual the physical possession is handed over to the complainant as per this order, OP shall get the Sub-Lease Deed Registered within 30 days of handing over of the physical possession.
(vi) OP shall issue due receipts for each of the payment received, if not issued earlier, clearly showing the date of receipt, amount received and purpose for which received. If complainant disputes any of the payment(s) already made or demanded now by OP before handing over of physical possession, complainant shall specifically write to OP within 15 days of issuance of such receipts or date of this order, stating his reasons for dispute to any payment already made/demanded now. OP shall respond to such objection within 15 days of receipt of such communication from the complainant, giving clear reasons for demanding such disputed payments. Both the parties will endeavour to amicably resolve the issue of disputed payments as per terms and conditions of the agreement.
The pending IAs, if any, also stand disposed off.