Subhash Chandra, Presiding Member
1. This consumer complaint under section 21(a)(i) of the Consumer Protection Act, 1986 (in short, the ‘Act’) is filed against the opposite party alleging deficiency in not handing over possession of the flat booked by the complainants within the promised time and seeking refund of the amount deposited with interest as compensation and other costs.
2. The facts, according to the complainant, are that he became a member of the opposite party, a Cooperative Group Housing Society (CGHS), on 15.10.2006 on payment of the requisite membership fee and was allotted membership no. 37. The opposite party is a Cooperative Group Housing Society of 36 members registered under the Haryana Cooperative Societies Act, 1984 with membership no. 1000 dated 27.01.2006. The Society undertook construction of flats in Sector 2, Faridabad in 2010 for its members. The estimated cost of the building was Rs 42,60,000/- based upon the estimate prepared dated 12.11.2010 by the architect, M/s Munish Verma & Associates, Shakti Nagar Extension, New Delhi 110052. It was anticipated that the construction would be completed by 28.02.2013. On 20.12.2014 the complainant was allotted a flat by draw of lots. On 06.04.2014 Flat no 702, Vijeta CGHS, Sector 2, Faridabad was allotted to him. A ‘No Objection Certificate’ (NOC) was issued by the Society on 17.09.2011 to enable him to avail a loan from HDFC. Subsequently, vide letter dated 03.11.2012, it was informed by the architect that the estimate was being revised to Rs 51,75,500/- since the quantity of steel had been incorrectly calculated, there was escalation in the price of steel and other building materials. This issue was discussed in the General Body Meeting (GBM) of the Society on 25.05.2013 when the complainant was also present. While other members, including some who initially protested the revision of rates, had reservations, all except the complainant accepted the revised rates.
3. Complainant approached the Permanent Lok Adalat, District Courts Sector 12, Faridabad under section 12(c)(1) of the Legal Services Authorities Act, 1947 which dismissed the matter on 07.07.2014 and thereafter the Assistant Registrar, Cooperative Societies, Faridabad which ordered handing over possession of the flat on 17.11.2015. Due to inaction by the opposite party, similar subsequent orders were also passed on 21.07.2016, 04.10.2016 and 11.01.2017. According to the complainant, possession was due on 01.03.2013 and was admittedly delayed even though Sinking Fund of Rs 75,000/- was paid on 06.10.2014. The complainant submits that he has paid Rs 56,70,680/- so far. However, his membership of the CGHS was cancelled and possession was denied despite opposite party’s letter dated 20.02.2015 to take possession. It is contended that the opposite party asked complainant to clear all dues vide letters dated 26.11.2016 and 20.01.2017 and levied penal and legal charges of Rs 1,13,602/- as maintenance charges. The complainant contested the same as possession was not handed over to him. Reliance is placed on this Commission’s judgment in Yogesh Sharma & Ors. Vs. Unitech Limited, CC No. 267 of 2011 dated 26.11.2015 which ordered refund of amount deposited with 18% interest since the builder failed to construct the flats and the judgment of the Hon’ble Supreme Court in Narne Construction Pvt. Ltd. Vs. Union of India, AIR 2012 SC 2369 which held failure to deliver possession to be a deficiency under section 2(i)(g) of the Act.
4. The complainant is before this Commission with the prayer to direct the opposite party to:
(a) refund the entire amount of Rs 56,70,680/- paid with interest @ 18% p.a. accrued till 16.08.2017 amounting to Rs 55,19,071/-, i.e. a total of Rs 1,11,89,751.11;
(b) pay Rs 5,00,000/- for mental agony and harassment;
(c) pay Rs 50,000/- towards cost of litigation;
(d) any other order deemed fit.
5. The opposite party resisted the complaint by way of a written statement and denied all averments of the complainant. Preliminary objections were taken that (i) this Commission lacked jurisdiction to entertain the complaint as the amount claimed had been inflated to meet the threshold; (ii) the complaint was barred by limitation under section as it had been filed after the expiry of the two year period from the date of taking over possession of the flat as prescribed under section 24A of the Act; (iii) the appropriate forum to agitate his grievances was under the Cooperative Societies Act before the Registrar of Cooperative Societies and not before this forum.
6. On merits, it was contended no deficiency was established under the Act since the complainant was a defaulter and he had also stated in his submission that he did not wish to stay in the society where he is disliked by other members. Maintenance and interest were due from the complainant since possession had already been taken by him on 01.02.2015 and the maintenance agreement had not been executed despite notice. The cost escalation of the project was stated to be on account of the inadvertent error in in the original estimate dated 21.11.2010 prepared by the architect pertaining to calculation of steel quantity, increase in the cost of the two lifts due to be installed, increase in the purchase price of cement and increase on account of purchase difference of marble and wall/floor tiles as conveyed by letter dated 03.11.2012. It was also stated that the opposite party was a cooperative society and that its members collectively approved the revision in the price of the flats after duly considering the revision proposed by the architect engaged by them except the complainant who had been contesting the revision before different fora. The issue had been discussed and approved by the General Body Meeting (GBM) of the Society on 25.05.2013 as per the Minutes of the meeting which were on record. It was contended that possession had been handed over to the complainant on 01.02.2015 and he was therefore required to pay maintenance charges and penal interest for default which had not been done. The complainant was a defaulter according to the opposite party as he had failed to deposit Rs 2,13,954/- towards maintenance as on 24.11.2018. It was averred that the complainant had not disclosed the full facts. The Sinking Fund was of Rs 50,000/- which was paid on 17.11.2014 whereas Rs 25,000/- was towards maintenance charges. Physical possession had been given by the contractor, M/s NG Constructions and the Society on 01.02.2015 and the complainant had certified that the quality of construction was to his satisfaction. According to the opposite party, the real issue was the payment of maintenance charges and interest for delay which the complainant was shying away from. Accordingly, it is submitted that the complaint be dismissed.
7. Parties led their evidence on affidavit and filed the rejoinder, written submission, and short synopsis of arguments. I have heard the learned counsel for both the sides and perused the evidence on record carefully.
8. During arguments the learned counsel pressed for refund with interest since the opposite party had been harassing him as he had questioned the price escalation of the flat. There was an admitted delay of nearly 2 years since possession was due on 01.03.2013 which amounted to deficiency in service. The opposite party was also guilty of unfair trade practice since the price was manipulated and a higher amount had been demanded after finalizing a lower amount. Various un-necessary charges were also demanded on subsequent dates even though the rate was fixed as per the allotment letter. The alleged increase in the price due to an arithmetical error was unsustainable. The non-compliance of the orders of the ARCS, Faridabad was cited as example of his harassment. It was stated that the opposite party vide letter dated 26.11.2016 had informed that the refund with interest would be provided from 30.08.2015. Reliance was placed on the judgment of the Hon’ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, Civil Appeal No. 3182 of 2019 decided on 25.03.2019 that homebuyers are allowed to claim refund from defaulting builders in case there is prolonged delay in delivery and this Commission in Kushal K. Rana Vs. DLF Commercial Complexes Ltd. dated09.09.2014 which held that the terms and conditions of the agreement bind both the parties.
9. On behalf of the opposite party it was argued that the complainant is silent regarding the deficiency in the complaint and the evidence led. It is also stated that even the Assistant Registrar has concluded that the opposite party is willing to hand over possession of the flat which the complainant has refused. On the contrary, the mala fide intent of the complainant is evident.
10. From the material on record and the arguments advanced by both the learned counsel for the parties, it is manifest that the complainant has charged the opposite party with deficiency in service with regard to the delay in handing over of possession on 01.02.2015 as against the promised date of 01.02.2013 and with unfair trade practice in revising the cost of the flat to Rs 51,75,500/- after committing to a sale price of Rs 42,60,000/-. Admittedly, the complainant has paid Rs 56,70,680/- inclusive of sinking fund, maintenance, and penalty. The price itself has been escalated by Rs 9,15,500/- which, as per record, is on account of the correction of the quantity of steel, price of lifts, purchase price of cement and cost of marble and tiles. It is evident from the record that the GBM accepted the revision of the cost based on the architect’s letter dated 03.11.2012.
11. An offer of possession was made to the complainant on 06.10.2014 as is evident from the circular no. VCGHSL/10/14 brought on record by the opposite party. Possession was admittedly taken on 01.02.2015. The complainant is therefore liable to pay the maintenance charges to the opposite party from the date of taking over possession of the flat. The complainant contends that possession of the flat has not been handed over to him and on that basis contests the charging of maintenance charges (and penalty for delay in payment). Per contra, it is the contention of the opposite party that possession was handed over to the complainant. As per record, this was done by the Society in the presence of the contractor along with an inventory on 01.02.2015 that was signed by both the complainant and the opposite party. The contention of the complainant that possession has not been handed over cannot be considered to be valid for this reason. There has however been delay in handing over possession which was promised on 01.03.2013 but was admittedly done on 01.02.2015. However, despite paying the sinking fund and the maintenance charge, the complainant has contested that the possession has been handed over. This contention is clearly erroneous. The complainant submitted during arguments that his continuation in the Society is now not tenable as he is disliked by other members.
12. It is also relevant to note that the opposite party is not a professional builder engaged in the primary business of building and sale of flats. Therefore, it would be incorrect to saddle it with penalties as claimed by the complainant, even though delay in handing over possession is admitted which is a deficiency in service.
13. For the aforementioned reasons, it is evident that the opposite party is guilty of deficiency in service and the complaint is found to have merit and is liable to succeed. The complainant is also guilty of not having paid the maintenance charges to the opposite parties. The complaint is accordingly allowed in part with the following directions:
(i) the opposite party is directed to refund the amount of Rs.56,70,650/- paid by the complainant towards flat no. 702, Vijeta Cooperative Group Housing Society, Sector 2, Faridabad with 6% interest p.a. from the respective dates of deposit till the date of offer of possession, i.e. 06.10.2014;
(ii) the complainant shall pay maintenance charges to the opposite party from the date of possession till the date of this order;
(iii) opposite party shall not insist on the payment of legal charges;
(iv) parties shall bear their own costs.
All pending IAs are also stand disposed of with this order.
