Dev Raj, Member:
1. In brief, the facts of the case, are that as the complainant wanted to move into a residential house, in the area of Tri-City, and, for that purpose, was lured by the advertisements of the Opposite Parties. It was stated that there were some individuals, who were willing to transfer their units by entering into an independent agreement with the approval of the Opposite Parties. It was further stated that the complainant was told that the one Sh. Jagmohan Marwaha, owner of the unit bearing NoTVM J1-F05-501, was interested in transferring his unit alongwith all the amount he had already deposited with the Opposite Parties. It was further stated that the complainant entered into an independent agreement with Sh. Jagmohan Marwaha and paid the amount, which he had paid to the Opposite Parties and, thereafter, the complainant was nominated as the owner of the said unit vide letter dated 26.11.2011, Annexure C-1 by the Opposite Parties. The price of the unit was Rs.51,42,750/-, out of which Rs.43,78,962/- stood already deposited with the Opposite Parties as on 26.11.2011. It was further stated that the complainant paid another amount of Rs.87,500/- vide cheque No.001953 dated 21.11.2011, Annexure C-2. It was further stated that when the complainant asked for any agreement to be signed, she was told that the agreement executed between Sh. Jagmohan Marwaha and the Opposite Parties, shall be applicable to her (complainant). The remaining amount was to be deposited after the possession was given. It was further stated that the complainant was further told that, in case, she needed the agreement, she could contact the original allottee. It was further stated that the complainant was shocked to receive a letter dated 13.5.2013, from the Opposite Parties, Annexure C-3, where she was asked to deposit Rs.3,05,969.70Ps within 30 days. It was further stated that the complainant immediately contacted the Opposite Parties, and informed that since the construction linked installment plan was opted, therefore, the remaining installments were to be paid, at the time of delivery of possession. It was further stated that the complainant also submitted a written representation, Annexure C-4, and requested to supply copy of the agreement and payment schedule alongwith other relevant documents but to no avail.
2. It was further stated that the Opposite Parties, vide their letter dated 16.8.2014, Annexure C-5, arbitrarily increased the price of the unit, of their own, to Rs.60,83,543/- i.e. by around 20% and asked the complainant to remit the total amount of Rs.18,38,829/- i.e. [(Rs.8,86,436 for revised area, Rs.8,23,081/- as 5% of basic and5% of EDC including applicable service tax, Rs.26,762/- as delayed interest and Rs.1,02,550/- as IFMS (Interest Free Maintenance Security) @Rs.50-/- per sq. ft.]. It was further stated that the complainant refused to deposit the said amount and gave another representation dated 22.8.2013, Annexure C-6, but no action was taken by the Opposite Parties. It was further stated that on getting suspicious of the intentions of the Opposite Parties, the complainant contacted the original allottee Sh. Jagmohan Marwaha and requested him to supply copy of contract, who informed that he had deposited all the documents with the Opposite Parties and asked him to contact them. It was further stated that on contacting the Opposite Parties, an official of the Company submitted an agreement to the complainant, which was not signed by her. However, it was endorsed in her favour.
3. It was further stated that as per Clause 21 of the agreement, the Opposite Parties were liable to give possession of the apartment within 36 months with a grace period of 3 months. It was further stated that the agreement was entered into on 6.2.2008, according to which, possession of the apartment was to be given by May 2011. It was further stated that there was absolutely no default of payment in the account of the allottee till 26.11.2011. It was further stated that the Opposite Parties were solely responsible for the constructive repudiation of the contract and, therefore, the contract was rescinded by the Opposite Parties themselves. It was further stated that, otherwise also, the Opposite Parties suo moto increased the so called super area of the unit and were trying to take shelter of the provisions of the contract, Annexure C-7. It was further stated that as per Clause 23.1 of the contract agreement, Annexure C-7, the Opposite Parties were liable to pay compensation @Rs.5/- per Sq. Ft. per month of the super area, for delay, till the possession was given. It was further stated that the Opposite Parties could not ask the complainant to pay the installments without adjusting the compensation, as provided in Clause 23. It was further stated that despite repeated requests and reminders, no action was taken by the Opposite Parties, for the construction of the allotted tenement or to refund the amount paid by the complainant.
4. It was further stated that the acts of the Opposite Parties in not delivering the actual physical possession, complete in all respects, or refunding the amount alongwith interest, to the complainant, amounted to deficiency, in rendering service, as also, indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, seeking directions to the Opposite Parties, to refund Rs.43,78,962/- alongwith interest @18% per annum, from the respective dates of deposits or, in alternative, to accept the amount as initially agreed to with the same super area without any interest after taking into consideration compensation under Clause 23; pay Rs.5 lacs as compensation for physical harassment and mental agony besides Rs.22,000/- as cost of litigation or any other relief, which this Commission deemed fit in the facts and circumstances of the case.
5. The Opposite Parties, in their written statement, took up certain preliminary objections, to the effect that this Commission had no territorial as well as the pecuniary jurisdiction to entertain and try the complaint. On merits, it was stated that the complainant purchased the flat from open market on her own and paid the booking amount without any inducement from anyone. The Opposite Parties denied the allegation of allurement by them. It was further stated that the complainant was duly informed, at the time of transfer of flat, that all pending dues, if any, were to be cleared before the same could be transferred. It was further stated that the complainant was well aware of the fact that the price of unit and area of the unit were tentative and subject to change. It was further stated that the total cost of the unit was Rs.60.83 Lacs, out of which, an amount of Rs.43.78 Lacs was paid. It was further stated that the balance amount was to be paid as per the demands raised on due dates mentioned in the payment schedule. It was further stated that only 5% of the basic sale price and other charges including maintenance, water, club etc. were payable at the time of intimation of offer of possession, which were demanded vide letter dated 16.8.2013.
6. It was further stated that the complainant failed to pay installments on time and reminders to remit the due amounts, were sent to her vide Annexures R-1 to R-6. It was further stated that the flat was transferred in the name of the complainant on completion of relevant transfer formalities with the Opposite Parties in November 2011. It was further stated that, as admitted by the complainant, she independently entered into an agreement with the previous owner of the flat. It was further stated that, as a matter of Policy, all documents including the allotment letter, receipts and buyers agreement were endorsed in favour of the new buyer, in case of transfer and the same was communicated to the complainant. It was further stated that the agreement was also endorsed in favour of complainant. The submission of written representation by the complainant was denied. It was stated that demand letter dated 21.3.2013 followed by reminders dated 12.4.2013 and 27.4.2013 were sent to the complainant but she did not remit the amount. It was further stated that final notice dated 13.5.2013 was also sent to the complainant to make payment within 30 days. It was further stated that the Opposite Parties sent letter dated 23.7.2013, Annexure R-7, to the complainant intimating her as regards the change of layout plan and she was also sent letter of possession on 16.8.2013, Annexure R-8, which clearly stated that the super area of the unit had been changed to 190.54 sq. mt. from 162.58 sq. mt. It was further stated that statement of account was also sent to the complainant.
7. It was admitted that the possession of flat was to be handed over to the complainant within 36 months from the date of allotment and, in case of any delay beyond the time frame, mentioned in the agreement, her interest was duly protected by the safeguards built in the same. It was further stated that the Opposite Parties asked the complainant to take possession but she failed to take the same and was unnecessarily harping on the earlier delay. It was further stated that the complainant was liable to pay holding charges as per the terms and conditions of the agreement. It was further stated that all units were subject to change in areas, and this had been clearly mentioned in the buyers agreement, available with the complainant. It was further stated that since there had been delay in remitting the installments, by the complainant, she was not entitled to compensation under Clause 23.1 of the buyers agreement. It was further stated that all demands were raised by the Opposite Parties on completion of construction milestones. It was further stated that the tower had been constructed, occupation certificate was also obtained and complainant was called upon to take possession after paying the outstanding installments, which she failed to pay. It was further stated that the construction of the unit allotted in favour of the complainant was complete and intimation of possession letter was sent accordingly in August, 2013. It was further stated that cancellation of allotment, was to be governed by the terms and conditions of the buyers agreement, and would also involve forfeiture of amounts as mentioned therein. It was further stated that the Opposite Parties were neither deficient, in rendering service, nor indulged into unfair trade practice. The remaining averments, made in the complaint, were denied
8. The complainant, filed replication, wherein she reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of the Opposite Party.
9. The complainant, in support of her case, submitted her own affidavit, by way of evidence, alongwith a number of documents.
10. The Opposite Parties, in support of their case, submitted affidavit of Sh. Mohit Kaura, their GM “ Customer Services and authorized representative, alongwith a number of documents, by way of evidence.
11. We have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully.
12. The Counsel for the complainant, submitted that the total price of the unit was Rs.51,42,750/- and by paying Rs.43,78,962/-, the complainant approximately paid 85% of the total price of the unit. It was further submitted that as per schedule of payment, forming part of the apartment buyers agreement dated 6.2.2008, 5% of the price was payable on receipt of occupation certificate and 5% on intimation of possession. It was further submitted that as per letter dated 27.4.2013, Annexure R-2, an amount of Rs.3,05,969.70Ps was payable by the complainant. It was further submitted that the Opposite Parties arbitrarily increased the super area of the flat, which was more than 20% of the original area, and the same was in violation of Clause 18 of the terms and conditions of the apartment buyers agreement. It was further submitted that the complainant was entitled to compensation @Rs.5/- per sq. ft. per month of the super area, for delay, till the possession was given. It was further submitted that since the increase was more than 10%, the Opposite Parties were required to seek consent of the complainant, which they did not obtain. It was further submitted that there was delay in delivery of possession. It was further submitted that the price of the flat, in question, was increased by Rs.11 Lacs and there was delay of three years in offering possession. It was further submitted that the amount paid by the complainant was required to be refunded to her.
13. On the contrary, the Counsel for the Opposite Parties, submitted that as is evident from Annexure C-1, the complainant purchased the aforesaid unit in November 2011 and a period of three years had already lapsed. It was further submitted that as per Clause 1.2 and 1.3 of the apartment buyers agreement, the Opposite Parties could increase the area. It was further submitted that there was no deficiency, which could be attributed to the Opposite Parties.
14. It is evident, from record, that the complainant stepped into the shoes of the previous owner/allottee viz. Mr. Jagmohan Marwaha, with whom the Opposite Parties had executed the apartment buyers agreement dated 6.2.2008, Annexure C-7. As is evident from nomination letter dated 26.11.2011, Annexure C-1, that in pursuance of the documents submitted by the previous owner viz. Sh. Jagmohan Marwaha and the complainant, apartment bearing No.TVM J1-F05-501 at The Views, Mohali stood transferred in the name of Ms. Dilshad Gill and the Opposite Parties also confirmed having received a total sum of Rs.43,78,962/- towards the said property. Vide the aforesaid letter, the complainant was also informed that the next installment of Rs.2,48,763/- shall be due and payable on completion of flooring and wall paint slab, for which, a separate demand letter was to be sent by the Opposite Parties, 15-20 days prior to the due date.
15. The first question, which falls for consideration, is, as to whether, this Commission has the territorial and the pecuniary jurisdiction, to entertain and try the complaint. The answer to these questions, is in the affirmative. Since nomination letter dated 26.11.2011 was issued to the complainant by Opposite Party No.1, which is the branch office of Opposite Party No.2, situated at Chandigarh and the payment of Rs.87,500/- made by the complainant, was received by it (Opposite Party No.1) at Chandigarh, a part of cause of action, accrued to the complainant, at Chandigarh and, as such, this Commission has the territorial jurisdiction to entertain and decide the complaint. This objection of the Opposite Parties, being devoid of merit, is rejected.
16. So far as the other objection, relating to pecuniary jurisdiction of this Commission, is concerned, the complainant has sought refund of Rs.43,78,962/- paid to the Opposite Parties plus Rs.5 Lacs as compensation besides Rs.22,000/- as cost of litigation, which is above Rs.20 Lacs and below Rs.1 Crore. This Commission has, thus, got pecuniary jurisdiction to entertain and decide the case. Thus, this objection of the Opposite Parties, being devoid of substance, is rejected.
17. The next question, which falls for consideration, is, as to whether, the Opposite Parties could increase the area of the apartment and, if so, to what extent. The complainant has submitted that as per the terms and conditions, the Opposite Parties could not increase the area in excess of 10% of the original area as indicted in the apartment buyers agreement. On the other hand, the stand of the Opposite Parties, was that they could increase the area even beyond 10% by giving due notice to the complainant. By giving notice dated 16.08.2013, Annexure C-5, they duly complied with the conditions of the apartment buyers agreement. It was further submitted by the Opposite Parties that the complainant did not deposit the outstanding installment and amounts, which became due, against her on account of increased area. It was, therefore, contended that there was no deficiency on the part of the Opposite Parties. To appreciate this controversy, it would be necessary to look into the relevant clauses of the apartment buyers agreement. Clauses 1.2, 1.3 and 18/18.1 of the apartment buyers agreement, being relevant, are extracted hereunder:-
1.2 The Allottee agrees and understands that the Sale Price of the Agreement shall be calculated on the basis of the Super Area (as defined and detailed out in Annexure III) and that the Super Area as stated in this Agreement is tentative and subject to change till the completion of the construction and the issuance of the occupation certificate by the competent authorities. The final super area of the Apartment shall be confined by the Company only after the construction is complete and the issuance of the completion certificate by the authorities.
1.3 The total price payable for the Apartment shall be re-calculated upon confirmation by the Company of the final Super Area. Any increase or reduction in the super area shall be payable or refundable as the case may be without any interest at the same rate per sq. ft of Super Area as abovestated. If there is an increase in the Super Area the Allottee shall pay to the company immediately upon demand raised by the Company. If there is a reduction in the super area the refundable amount shall be adjusted by the Company in any amount receivable from the Allottee or shall be adjusted by the Company from the final instalment as set forth in the Schedule of Payments.
18.1 In the event of any alteration/modification resulting in more than 10% (ten percent) increase or decrease in Super Area of the Apartment, the Company shall in its sole opinion, any time prior to or upon the grant of occupation certificate, intimate the Allottee in writing of such increase or decrease in Super Area thereof and the resultant change, if any, in the Sale Price of the Apartment. In the event that the Allottee has any objection to such increase or decrease in Super Area, the Allottee shall within thirty (30) days of intimation of the increase or decrease by the Company file objections, failing which it shall be deemed that the Allottee has no objections and has given absolute consent to such increase or decrease in super area and/or any alterations/modifications and for payments, if any, to be paid in consequence thereof. However, in case the Allottee demands refund of the monies deposited by the Allottee towards the Apartment booking, then the Company, shall cancel this Agreement without any further notice and refund the money received from the Allottee within thirty (3) days of the sale of the Apartment to any third party. The Company shall refund the money to the Allottee after deduction of the Earnest Money, whereupon, the Company and/or the Allottee shall be released and discharged from all their obligations and liabilities under this Agreement. It being specifically agreed that irrespective of any outstanding amount payable by the Company to the Allottee, the Allottee shall have no right, lien or charge on the Apartment in respect of which refund as contemplated by this clause is payable.
18. A bare perusal of afore-extracted clauses reveals that when there was alteration/modification, resulting in more than 10% increase, or decrease in the super area of the apartment, the Company shall intimate the allottee, in writing, of such increase. In the instant case, such a change was duly notified to the complainant vide notice dated 16.08.2013, Annexure C-5. The allottee (complainant) could file objections within 30 days of intimation to the Company (Opposite Parties), failing which, it was to be deemed that the allottee had no objection and same amounted to absolute consent to such increase or decrease in super area and/or any alterations/modifications. Since the complainant did not inform the Opposite Parties, no deficiency, on this count, can be attributed to the Opposite Parties.
19. It is evident from letter/notice dated 16.8.2013, Annexure C-5, that a sum of Rs.18,38,829/- was due against the complainant, which was to be paid by her. The complainant failed to deposit this amount. The Opposite Parties then issued a notice dated 11.11.2013, Annexure R-6, calling upon the respondent/complainant to make payment of outstanding amount of Rs.18,12,062.01Ps within a period of 30 (thirty) days, failing which, the Buyers Agreement was to be automatically cancelled. Clauses 3.1, 3.2 and 21.10 of the apartment buyers agreement, being relevant are extracted hereunder:-
3.1 The Allottee has entered into this Agreement on the condition that out of the amount paid/payable by the Allottee towards the Sale Price including the parking spaces allotted, the Company shall treat 10% (ten percent) of the Sale Price of the Apartment as Earnest Money (hereinafter referred to as the œEarnest Money?).
3.2 The Allottee hereby agrees that the Company shall have the right to forfeit out of the amounts paid/payable by the Allottee, the Earnest Money as aforementioned in the event of the failure of the Allottee to perform its obligations or non-fulfillment of all/any of the terms and conditions set out in this Agreement executed by the Allottee or in the event of failure of the Allottee to sign and return this Agreement in its original form to the Company within thirty (30) days from the date of its dispatch by the Company.
21.10 It is agreed by the Allottee that in the event of the failure of the Allottee to take the possession of the said Apartment in the manner as aforestated, then the Company shall have the option to cancel this Agreement in accordance with the terms of this Agreement or the Company may, without prejudice to its rights under any of the clauses of this Agreement and at its sole discretion, decide to condone the delay by the Allottee in taking over the possession of the said Apartment in the manner as stated in this clause on the condition that the Allottee shall pay to the Company the following amount:¦¦.?
20. Thus, from the perusal of the provisions of the afore-extracted clauses, it is clear that in the event of failure on the part of the allottee (complainant), in performing her obligations or non-fulfillment of all/any of the terms and conditions set out in the apartment buyers agreement, Annexure C-7, the Opposite Parties could forfeit the amount of earnest money, which as per Clause 3.1 is 10% of the sale price of the apartment, and the rest of the amount paid by the complainant was to be refunded to her. Thus, the complainant was entitled to the refund of amount paid by her, minus the earnest money to the extent of 10% of the sale price of the apartment, in question. In the present case, since an amount of Rs.43,78,962/- stood paid to the Opposite Parties, therefore, the complainant is entitled to the refund of Rs.39,41,066/- i.e. (Rs.43,78,962.00 minus (-) Rs.4,37,896.00 being 10% of Rs.43,78,962.00), which the Opposite Parties are liable to pay. By not refunding this amount, as per the aforesaid clause 3.2 of the apartment buyers agreement, the Opposite Parties, were deficient, in rendering service. In our considered opinion, normal interest @9% per annum, from the respective dates of deposit, if granted, would be just and fair.
21. For the reasons recorded above, the complaint, is partly accepted with costs, in the following manner:-
(i) The Opposite Parties are directed to refund the amount of Rs.39,41,066/- i.e. [Rs.43,78,962.00 minus (-) Rs.4,37,896.00 being 10% of Rs.43,78,962.00] alongwith interest @9% per annum, from the respective dates of deposits.
(ii) The Opposite Parties, are jointly and severally, directed to pay Rs.20,000/- to the complainant as cost of litigation.
(iii) The amounts mentioned, in Clauses (i) and (ii), above, shall be paid, by the Opposite Parties, jointly and severally, within a period of 45 days, from the date of receipt of a certified copy of this order, failing which, they shall be liable to pay penal interest @12% per annum, instead of 9% per annum, on the amount mentioned in Clause (i) viz. Rs.39,41,066/- from the respective dates of deposits, till realization, besides payment of costs, till realization.
22. Certified Copies of this order be sent to the parties, free of charge.
23. The file be consigned to Record Room, after completion.