KULBHUSHAN GUPTA Vs. SWETA ESTATES PVT. LTD.

JUDGEMENT

(1.) The present Consumer Complaint has been filed under Sec. 21(a)(i) of the Consumer Protection Act, 1986 (for short "the Act') against the Opposite Party seeking the following directions:-

(2.) Brief facts of the case, as per the complainants, are that the Opposite Party (OP) had come out with a project known as Belgravia Phase-II at Plot No.21, Sector 48, Sohna Road, Gurgaon, Haryana during 2010-11. Based on the Application of one Ms Santosh Verma, the OP had issued a provisional Allotment Letter dtd. 10/11/2022 for Apartment No.15A, Tower No.21 in the said Belgravia Phase-II Project. Thereafter, an Apartment Buyer Agreement (ABA) was entered into between the said Ms Santosh Verma and the OP on 6/6/2012 for a total sale consideration of Rs.80,73,000.00 at the rate of Rs.5400.00per Sq Ft. for total area of 1495 Sq Ft. In addition, in terms of the said ABA dtd. 6/6/2012, the OP claimed and charged payments towards preferential location, EDC/IDC, Covered Car Parking Club Infrastructure Development Charges and IBMSD amounting to Rs.16,21,250,.00 thus, making the total cost of the flat as Rs.96,94,250..00 It is the contention of the complainant that the payment for purchase of the said Flat was linked to the progress of the construction of the flat and as per Clause 9.1 of the ABA dtd. 6/6/2012, the possession of the flat was to be handed over to the complainant by the OP within a period of 36 months, that is to say on or before 6/6/2015. It is the contention of the complainants that vide Agreement to Sell dtd. 17/2/2014 the said flat in question was sold by Ms Santosh Verma to M/s Celio Finance Private Limited and on 3/5/2014 necessary endorsement was made in the records of the OP in this regard. During May 2014, the complainants were looking for a residential house in Gurgaon for their own residential purpose for the family requirements. Accordingly, the complainants purchased the said flat in question from M/s Celio Finance Private Limited for total sale consideration of Rs.1,08,92,060.00 vide Agreement to Sell dtd. 30/5/2014. It is the complainants' contention that, of the total amount paid, Rs.93,92,060.00 was paid to the said M/s Celio Finance Private Limited, and the balance Rs.13,55,632.00 was paid to the OP as the amount remaining outstanding as per the ABA dtd. 6/6/2012. The complainant and M/s Celio Finance Private Limited have submitted necessary documents required by the OP during July, 2014. It is the contention of the complainant that, thereafter, they have taken the place of M/s Celio Finance Pvt. Ltd. as well as Ms Santosh Verma vis-a-vis the OP with respect to the Flat in question and they constitute the allottees of the said Flat. Subsequently, as per the demands made by the OP the complainants made further payments of Rs.10,25,952.00 and the last payment of Rs.5,89,237,.00 after deducting TDS of Rs.5,652.00 to the OP on 31/8/2015. Thus, the complainant contended that the total payment made by the complainants and their predecessors in interest to the OP was Rs.92,24,317,.00 including Service Tax of Rs.3,20,591.00 total amounting to Rs.89,03,726..00 Therefore, as per ABA dtd. 6/6/2012 an amount of Rs.7,90,524.00 remained due and payable to the OP. It is the contention of the complainant that as per the ABA dtd. 6/6/2012, the possession of the flat in question was to be handed over by the opposite party to them on or before 6/6/2015. Accordingly, the complainant kept enquiring with the OP about the status and progress of the project and the date on which it would be handed over. However, the OP is did not give any response and kept avoiding the date of delivery of possession. On 6/5/2016 i.e. well after the lapse of time for handing over the date of possession due, on 6/6/2016 they received a notice cum demand letter from the OP informing the complainants that the area of the flat had been increased from 1495 to 1666 Sq Ft. and the OP also demanded additional amount of Rs.24,20,021.00 from the complainants on various accounts such as additional area charges, escalation charges, electricity connection charges, power backup, service tax etc. During, May, 2016 when they inspected the flat in question, it was noticed that the flat being given by the OP was in fact much smaller than the original 1495 Sq Ft flat and was in fact measuring about 1200 Sq Ft only. Therefore, the demand letter of the OP dtd. 26/5/2016 claiming that there has been increase in the super area of the flat in question by 171 Sq Ft was totally incorrect and that the actual area was merely 1200 Sq Ft. Further, there has been delay in handing over possession of the flat. Thus, the OP has no right to claim the additional charges of Rs.10,30,275.00 towards additional super area; Rs.4,22,051.00 towards escalation charges; Rs.1,56,212.00towards service tax totalling to Rs.16,08,538..00 On the other hand, the complainants contended that, on account of delay and deficiencies in service, it was the OP who is liable to pay Rs.7,47,500.00 towards refund on account of preferred location charges; Rs.36,875.00 towards refund on account of external development charges/infrastructure development charges; Rs.3,00,000.00 towards car parking charges; Rs.2,00,000.00 towards club infrastructure development charges; and Rs.1,86,875.00towards interest bearing maintenance security deposit, total amounting to Rs.14,71,250..00 The complainant contended that the OP was also liable to pay them Rs.16,74,527.00 towards interest; Rs.2,99,000.00 towards timely payment discount; and Rs.5,00,000.00 towards harassment, mental trauma totalling Rs.19,50,368..00 Accordingly, the complainants sought the complaint to be allowed and direct the OP to pay the complainants as stated in the prayer above.

(3.) On issue of notice, the OP filed the written version specifically contesting each of the issues raised in the complaint. It is the specific contention of the OP that the complainants have already paid the amount due as per the offer of possession as per their request to the OP and the OP has offered the flat on 12/8/2016 and they duly filled and signed apartment possession information form dtd. 12/8/2016 and the letter of undertaking. The OP contended that the relationship between the complainants and the OP is guided by the ABA dtd. 6/6/2012 which was executed by Ms Santosh Verma, the original allottee, and subsequently endorsed in favour of the complainants vide endorsement dtd. 18/6/2014. Therefore, the terms and conditions enunciated in the ABA are applicable to the complainants with full force. It is the contention of the OP that the entire complainants case is based on the premise that various charges demanded by the OP for possession vide letter dtd. 26/6/2016 have been fully explained and justified in the offer of possession itself and that the subsequent communications between the parties. The OP contended that after filing of this case, wherein the direction for handing over the possession was sought and additional charges as stated vide letter dtd. 26/6/2016 an amount of Rs.23,95,821.00demanded by the OP as per the terms of ABA and the same has already been paid by the complainants and possession was taken over. Therefore, the complaint itself has become infructuous. It is the contention of the complainant that there has been perpetual delay and default by the complainants towards making payments of instalments. Therefore, they have no claim over any timely payment discounts. As regards increase in the super area that was contested by the complainants, the OP specifically stated that, in terms of Clause 2.1 of the ABA "The Company has made clear and the Buyer has agreed that Basic Sale Price of the Apartment shall be calculated on the basis of Super Area (as per definition of super area in Annexure-1) and that the Super Area stated in the Agreement is tentative and subject to change till the construction of the Building is complete. The final Super Area of the Apartment shall be confirmed by the Company only after the construction of the Building is complete and occupation certificate is granted by the competent authority (ies). The total price payable for the Apartment shall be recalculated after confirmation by the Company of the final Super Area of the Apartment and any increase or reduction in the super area of the Apartment shall be payable or refundable, without any interest at the same rate per square feet as agreed in Clause 1.1 of this Agreement. If there shall be an increase in the Super Area, the Buyer agrees and undertakes to pay for the increase in Super Area immediately on demand by the Company and if there shall be a reduction in the Super Area, then the refundable amount due to the buyer shall be adjusted by the Company from the final instalment as set forth in the payment of plan of the Basic Sale Price in Clause 1.2. The increased/decrease in the Super area shall in no case exceed or be reduced beyond the limits prescribed in clause 8.1 mentioned here under.'