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Judgment
Ram Surat Ram Maurya, Presiding Member
Heard Mr. Bhaskar Vali, Advocate, for the complainants and Ms. Shyel Trehan, Advocate, for opposite party-1. S
Virendra Agarwal, Shalabh Virendra Agarwal and Ritika S. Agarwal have filed above complaint, for directing the opposite parties to (i) handover physical possession of flat No.801, 8th Floor, Veronica in Vasant Oasis on the land bearing CTS No.246, 340-345/61-B, Village Marol, Taluka & District Andheri, Mumbai; (ii) execute sale deed of the flat in favour of the complainants; (iii) refund an amount of Rs.14.17 lacs with interest @ 21% p.a. w.e.f. 25.11.2011; (iv) jointly and severally pay interest of Rs.9439411/- for delay alongwith pendent lite and future interest (v) jointly and severally pay Rs.20 lacs for change in layout plans; (vi) jointly and severally pay Rs.20 lacs for mental agony, harassment and inconvenience caused to the complainants; and (vii) any other orders which may be deemed fit and proper in the interest of justice.
The complainants stated that they are family members. Complainants-1 & 3 are husband and wife respectively and complainant-2 is their son. Opposite party-1 is a real estate company, who launched the project “Vasant Oasis” on the land CTS No.246, 340-345/61-B, Village Marol, Taluka & District Andheri, Mumbai. Opposite parties-2 & 3 are brokers/agents of opposite party-1. Opposite parties-2 & 3 approached complainant-2 to purchase of a flat in the above project and offered that they are agents and marketing partners of opposite party-1 and they will give extra benefit if the booking is made in the project. They also wrote emails dated 11.11.2010 and 12.11.2010 in this regard. It was represented that 2.5 BHK flat was having 1340 sq. ft. super built up area at the rate of Rs.9600/- per sq. ft. plus Rs.400/- per sq. ft., totalling Rs.10000/- per sq. ft. plus cover car parking charges of Rs.5 lacs. Thus, total cost of the flat was Rs.1.39 crores. The project was having 14 buildings of 14 floors each. Possession of the flat was to be handed over in December, 2013. Allured by the representations of the opposite parties-2 & 3, complainants booked flat No.801 in Veronica Building of the said project in December, 2010. Apart from the booking amount and some other payments, the complainants also paid brokerage charges to Opposite parties-2 & 3 which was refundable in case of cancellation of booking of the flat. Opposite parties issued allotment letter dated 10.04.2011 in the name of the complainants. Opposite party-1, vide letter dated 24.06.2011 arbitrarily increased the price of the flat. In October, 2011 threatened the complainants to sign a revised allotment letter otherwise their booking would be cancelled and demanded Rs.7.5 lacs on account of alleged increased carpet area from 830 sq. ft. carpet area to 879 sq. ft. carpet area and Rs.667000/- on account of VAT and service tax. The complainants paid the increased amount under protest, vide letter dated 25.11.2011 and thereafter made payments regularly and timely as and when demanded by the opposite parties. In the year 2014-2015, opposite party-1 changed the original layout plan of the entire project and increased the number of floors from 14 to 19 in each building and subsequently in the year 2015-2016 further increased the floors from 19 to 22 in each building. The complainants, vide letter dated 21.12.2015 expressed their grievance for the same and also demanded delay compensation @ 18% p.a. Opposite party-1 vide email dated 18.04.2017 sent ledger account of the complainants. According to the ledger account also booking was made on the basis of super built up area and not the carpet area. Therefore, the demand on account of increase in the carpet area was not justified. There were also some discrepancies in the ledger account which were brought to the notice of opposite party vide email dated 23.04.2017 reiterating the compensation for delay possession. The complainant-2 made payment of the balance 4% amount vide three cheques Nos.000070, 000071 and 000072 all dated 26.06.2017 for Rs.526213/-, Rs.24534/- and Rs.5621/- respectively. Opposite party-1 made false allegation that the cheque for Rs.526213/- was dishonoured due to insufficient balance, while opposite party-1 did not present the cheque for encashment and complainant-2 was having sufficient balance in his account. Officials of opposite party-1 informed that the possession would be handed over only after making the balance payment including miscellaneous charges, even though as per ledger dated 18.04.2017 provided by OP-1, the complainants have already paid Rs.484130/- as extra charges/additional miscellaneous charges. Again, opposite party-1 demanded another amount Rs.8.40 lacs for the alleged increased carpet area from 879 sq. ft. carpet area to 999 sq. ft. carpet area and Rs.3 lacs for club deposit. The complainants visited the office of opposite party-1 to resolve the matter but nothing was done. OP-2 & 3 also did not look into the matter. Then the complainants sent legal notice dated 24.08.2017 to the opposite parties, which was replied by OP-1 vide letter dated 31.08.2017 making false and baseless allegations against the complainants. Then, the instant complaint has been filed on 26.09.2017.
Opposite party-1 filed its written reply on 02.01.2018, wherein allotment of flat and the deposits made by the complainants have not been disputed. OP-1 stated that at the time of booking the complainants paid Rs.1319000/-. After booking of the flat, area of the premises was increased from 830 sq. ft. carpet area to 879 sq. ft. carpet area and the cost of the flat was also revised from Rs.13900000/- to Rs.14650000/-. This fact was intimated to the complainants, vide letter dated 24.06.2011. The complainants also agreed for the revised area and on their requests opposite party-1 sent fresh allotment letter dated 13.11.2011 with the revised area and consideration. Clause I of the initial allotment letter provided that OP-1 can amend, modify or vary the layout and building plan for any reason whatsoever such as architectural amendment or due to requirement of local authority or otherwise and in case of increase of the area, the allottee shall be liable to pay the difference amount. However, the difference amount due to increased carpet area has not been paid by the complainants. As per clause 8 of the allotment letter, stamp duty and registration charges were to be paid by the complainants. As the complainants failed to pay stamp duty and registration charges despite repeated requests vide letter dated 30.05.2013, 12.07.2013, 23.09.2013, 07.12.2013, 18.01.2014, 17.04.2013, 02.11.2015 and 18.04.2016, the agreement for sale could not be executed. Opposite party-1 obtained the occupation certificate in April, 2017 with respect to the building “Veronica” in which the flat of the complainants was situated. In reply to the legal notice, OP-1 again requested the complainants to pay registration charges for execution of agreement for sale. As per law, until agreement for sale is registered, possession cannot be handed over to the complainants. In the year 2012 concept of fungible FSI was introduced in Development Control Regulations, which led to change in the area of the flat from 879 sq. ft. to 999 sq. ft. carpet area and the consideration was also revised from Rs.14650000 to Rs.15490000/-. This fact was also intimated to the complainants. As per clause 11 & 12 of the allotment letter, legal charges, society formation charges, development charges, share money, corpus fund, maintenance charges (18 months), electricity charges, service tax, VAT, stamp duty and registration charges were also payable by the complainants. The complainants have paid 90.91% of the sale consideration and an amount of Rs.1866354/- is still payable by them, which is as under: -
Total Receivable details
Outstanding
Total Amt. in Rupees
Total Recd. in Rupees
Balance due in Rupees
Consideration Value
15490000
14082108
1407892
Service Tax on Agreement Value
558312
518108
40204
VAT on Value
154900
145035
9865
Other Charges Amount
48686
-
48686
Corpus Fund
299800
283000
16800
Maintenance Security Deposit
161892
-
161892
Maintenance Deposit
299800
195497
104303
S. Tax on other Charges
76452
-
76452
VAT on other Charges
260
-
260
Total:- 1866354
On 06.01.2012, amendment in Development Control Regulations took place, which required OP-1 to submit fresh building and layout plan to the competent authorities. Due to change in the layout plan, sewerage treatment plant was required to be shifted to underground, which was not permitted by the Executive Engineer, Traffic & Control. The plant was resubmitted with the fire authorities for fresh approval and the NOC by the fire department was given for construction of different levels on different dates i.e. 08.07.2011, 30.05.2012 and 03.03.2014. Environment clearance was granted by the concerned authorities on 24.01.2014. Opposite party-1 completed construction of the building “Veronica” in May, 2016 and obtained occupation certificate on 29.04.2017. Possession could not be handed over to the complainant as they failed to execute and register the agreement for sale. As per terms & conditions of the allotment letter, the complainants are also liable to pay interest @ 21% for delay in payment of outstanding balance of Rs.1871976/-.
Opposite parties-2 & 3 filed their joint written statement. It was stated that no deficiency in service has been alleged against them as such complaint qua them is liable to be dismissed. They promptly replied to the legal notice dated 24.08.2017 but the complainants have concealed this fact. They provide assistance to the buyers for choosing the property and their role is limited only to introduction to the seller. There is no relationship of principal and agent between OP-1 & OP-2 & 3 and they are not liable for deficiency in service, if any, committed by OP-1. The complainants have made false allegation that opposite parties-2 & 3 did not reply to the legal notice. The complainants have visited various properties and after satisfaction decided to purchase the property in question. There was no misrepresentation on their part nor was there any deficiency. Even the complainants have given feedback dated 08.01.2011 regarding rendering services by OP-2 & 3. Complainants are not consumers as the flat was booked for investment purpose and not for residential purposes. On these allegations, the complaint is liable to be dismissed.
The complainants filed Rejoinder Reply, Affidavit of Evidence of Virendra Agarwal and documentary evidence. Opposite party-1 filed the Affidavit of Evidence of Hiteshkumar Lal. Opposite parties-2 & 3 filed Affidavit of Evidence of Mayanbk Chawla. Complainants and opposite party-1 have filed their short synopsis of arguments. Counsel for the complainants relied on the judgments of this Commission as well as Supreme Court in M/s G.G. Associates vs. Commodore Ravindra Kumar Narad & Ors., Revision Petition No.1647 of 2014 decided on 16.0-4.2014; Developers Township Property Owenrs Welfare Society vs. Jaiprakash Associates Ltd., 2016 SCC Online NCDRC 1471; Jitendra Balani vs. M/s Unitech Ltd., 2016 SCC Online NCDRC 779; Shri Pradeep Narula vs. M/s Granite Gate Properties Pvt. Ltd., 2016 SCC Online NCDRC 1050; M/s Lodha Dwellers Pvt. Ltd. vs. Ashita Agrawal, 2020 SCC Online NCDRC 233; and M/s R.K. Constro Projects Pvt. Ltd. vs. Sonal Devendra Jain, 2017 SCC Online NCDRC 284.
We have considered the arguments of the counsel for the parties and examined the record.
According to the complainants, the flat was booked on the basis of “super built up area” and “not the carpet area”, vide allotment letter dated 10.04.2011. The size of the flat was 1340 sq. ft. super built up area. It is admitted by the parties that initial allotment was made vide letter dated 10.04.2011. In para-5 (O) of the complaint it is alleged by the complainants that copy of the said allotment letter dated 10.04.2011 was not provided to the complainants by opposite party-1. Even in the written statement opposite party-1 has admitted this fact. However, OP-1 stated that they are not in possession of the allotment letter dated 10.04.2011. The very basis of the contract between the complainants and opposite party-1 is the allotment letter dated 10.04.2011, which has been cleverly hidden by OP-1, and OP-1 is insisting on addendum (dated 24.06.2011) to the allotment letter and revised allotment letter dated 13.11.2011. The complainants have filed copy of the ledger account dated 18.04.2017 (Annexure-19) issued by opposite party-1 wherein the area of the flat has been mentioned as 1415.000 SFT (super built-up area). Moreover, the conduct of opposite party-1 by hiding the allotment letter leaves us with the inference that the flat was allotted on “super built-up area” and not the carpet area. Opposite party-1 has not adduced any evidence whatsoever to prove that there was any increase in the super built up area. It is admitted that the complainants deposited Rs.7.5 lacs for increased in the carpet area, under protest. Opposite party-1 further raised demand of Rs.8.40 lacs for increase in the carpet area. As the allotment was made on the basis of super built up area and opposite party-1 failed to prove that there was increase in the super built up area, both demands in regard to increased carpet area are not justified and are hereby quashed. After lodging of protest by the complainants, opposite party-1 should have clarified the fact relating to the “super built up area” and the “carpet area.” Complainant has deposited Rs.Rs.7.5 lacs under protest, which opposite party-1 is liable to refund with interest.
Allegation of the complainants that they are not liable to pay car parking charges as car parking is a facility attached to the flat. They are also not liable to pay local taxes, water charges, service tax, VAT, and other taxes imposed by the local authorities and the State/Central Government, cannot be accepted. Demand for car parking space and club membership fee and the taxes are according to the agreement and there is no illegality in it. Supreme Court in Wg.Cdr. Arifur Rahman Khan Vs. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512, held that if the builder is providing covered parking space then it is entitled to charge for it. Similarly, liability to pay service tax is a statutory liability and is payable. Regarding delay in handing over possession, it is admitted that possession was to be handed over in December, 2013. Opposite party-1 stated that the occupation certificate with respect to the building “Veronica” was obtained in April, 2017 but possession could not be offered to the complainants as they failed to execute the agreement for sale in terms of clause-8 of the agreement. Opposite party-1 is liable to pay interest for delay in delivery of possession from 01.01.2013 till the date of obtaining the occupancy certificate i.e. April, 2017. The opposite party-1 is also entitled to claim interest on the balance amount after adjusting delay compensation. Supreme Court in Wg.Cdr. Arifur Rahman Khan Vs. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512 and DLF Home Developers Pvt. Ltd. Vs. Capital Greens Flat Buyers Association, (2021) 5 SCC 537, held that interest @6% p.a. on the deposit of home buyers for the delayed period is appropriate delayed compensation.
Regarding maintainability, the opposite parties have not adduced any evidence to prove that the complainants are doing business of purchase and sale of the flat as such they cannot be held as the investors.
ORDER
Complaint against opposite party-1 is partly allowed. The opposite party-1 is directed to give delay compensation in the form of interest @6% per annum on the deposits of the complainants from 01.01.2013 till April, 2014. After adjusting delay compensation, if any amount remained to be paid by the complainants, opposite party-1 will charge interest @9% per annum on it.
As the complainants have failed to file any evidence to establish deficiency in service on the part of opposite parties-2 & 3, the complaint qua them deserves to be dismissed and is accordingly dismissed.