Dev Raj, Member:
1. This appeal is directed against the order dated 5.12.2013 rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which, it partly allowed the complaint, filed by the complainants (now appellants) and directed the Opposite Parties as under:-
œ19. For the reasons recorded above, the OPs are guilty of unfair trade practice and deficiency in service. Accordingly, the complaint is partly allowed. OPs are directed :-
i) To refund an amount of Rs.2,92,131/- for increased area + Rs.9027/- as service tax on increased area + Rs.81,503/- paid as Pre-EMI to HDFC + Rs.25,000/- towards interest free security deposit and maintenance charges of Rs.22,677/- (Total Rs.4,30,338/-) along with interest @12% from the date of the respective deposits by the complainants till realization.
ii) To pay compensation of Rs.2 lacs to the complainants for delay in handing over of possession of the flat and changing the place of parking and resultant mental agony and physical harassment to the complainants on account of unfair trade practice and deficiency in service.
iii) To pay an amount of Rs.20,000/- as litigation costs to the complainants.
20. This order shall be complied with by the OPs within one month from the date of receipt of its certified copy, failing which, OPs shall be liable to pay the interest on the amount of Rs.4,30,338/- @18% p.a. from the date of the respective deposits by the complainants till realization. The OPs shall also pay interest @12% p.a. on the amount of compensation of Rs.2 lacs, in case of default of payment within one month from the date of receipt of its certified copy, from the date of filing of the present complaint, till its realization, besides costs of litigation, as mentioned above.?
2. The facts, in brief, are that the complainants, with an intention to own a residential flat, for their own residential purpose, near the vicinity of city beautiful Chandigarh, agreed to purchase flat bearing No.27 GF at Palm Grove comprising 3 BHK, measuring super area of about 1525 Sq. Ft. at a total price of Rs.33,75,000/- from the Opposite Parties, in Sector 115, Kharar-Landran Road, Mohali. It was stated that allotment letter dated 24.6.2009, Annexure C-2 was issued and the complainants paid Rs.1,00,000/- to the Opposite Parties as the booking amount on 10.6.2009. Thereafter, they paid Rs.2,37,500/- on 2.7.2009 vide receipt, Annexure C-1. It was further stated that according to Para No.10 of the allotment letter, possession of the said flat, was to be given within a period of 24 months i.e. by 24.6.2011. It was further stated that on 27.10.2009, the complainants paid Rs.8,68,750/- vide receipt, Annexure C-3, and for making further payments, they took housing loan of Rs.20 Lacs from HDFC Ltd., out of which, first installment of Rs.3,12,500/- was disbursed on 6.11.2009, second installment of Rs.8,43,750/- on 6.7.2010 and the last installment of Rs.8,43,750/- on 1.2.2013 to the Opposite Parties. As such, in all, Rs.38,14,874/- were paid against Rs.37,88,062/- demanded by the Opposite Parties vide their letter dated 15.9.2012.
3. It was further stated that the Opposite Parties never apprised the complainants about the progress of the project, during its construction or even after the expiry of the construction period of two years. It was further stated that the complainants sent registered letter dated 25.6.2012, Annexure C-4, seeking the progress of project and intimation regarding the date of handing over possession of their flat. It was further stated that Opposite Party No.2 offered possession of the unit, in question, vide letter dated 12.7.2012, Annexure C-5. It was further stated that on 19.7.2012, the complainants inspected unit No.27 GF and found that the same was far from habitation. It was further stated that the complainants sent a detailed registered letter dated 26.7.2012, Annexure C-6, to the Opposite Parties, pointing out numerous defects/deficiencies/discrepancies and observations, which they did not even bother to reply. It was further stated that, thereafter, the complainants sent various registered letters dated 25.8.2012, 29.8.2012 and 13.9.2012, Annexure C-7 Colly. It was further stated that the Opposite Parties replied vide letter dated 15.9.2012, Annexure C-8, alongwith statement of account, asking the complainants to take possession of the unit, but they kept silent about the defects/deficiencies.
4. It was further stated that the unit was still not ready for occupation and the complainants were shocked to see the statement of account annexed with the offer of possession letter dated 15.9.2012, that the Opposite Parties demanded an amount of Rs.13,80,867/- (including balance payment + Rs.20,000/- as internal development charges + Rs.31,304/- as service tax + Rs.2,92,131/- as price for increased area and Rs.9,027/- as service tax + Rs.15,304/- as interest on delayed payment + Rs.25,000/- as IFMSD). It was further stated that the Opposite Parties charged Rs.20,000/- from the complainants, on account of IDC (Internal Development Charges), whereas, it was very much a part and parcel of the Project and, , as such this demand was unjustified. It was further stated that the Opposite Parties, of their own, increased the super area of the flat by another 132 sq. ft., which was never disclosed to the complainants and their consent was not obtained, for which, they were burdened with another sum of Rs.2,92,131/- + service tax of Rs.9,027/-. It was further stated that the Opposite Parties also charged Rs.15,304/- as interest on delayed payment, whereas, the complainants made all the payments well within time. It was further stated that the complainants were forced to deposit Rs.25,000/- interest free security deposit and maintenance charges of Rs.22,677/- with Star Facilities Management Limited (SFML), Sector 9-C,Chandigarh and Orchid County, Sector 115, Mohali before they could get possession of the unit. It was further stated that, being left with no other choice, the complainants deposited Rs.47,677/- with SFML, under protest, in order to take possession of the unit which was delivered only on 1.3.2013.
5. It was further stated that the complainants were entitled to Rs.47,677/- alongwith interest @18%. It was further stated that the Opposite Parties charged Rs.60,000/- for open car parking, which was shown in the brochure to be provided in front of the flats across the road, whereas, they played fraud by allotting the open car parking just along the entry road, which was far away from the complainants unit. It was further stated that the Opposite Parties erected a high wall at the place of original site of car parking across the road. It was further stated that the complainants wrote letter dated 20.9.2012 asking the Opposite Parties to clarify the issues regarding details of increased area, item wise break up of IDC charges etc. followed by reminders dated 1.11.2012, 20.11.2012, 4.12.2012 and 29.12.2012 but they failed to give reply to any of the letters. It was further stated that the complainants served a legal notice dated 20.12.2012, Annexure C-14, upon the Opposite Parties, but to no effect. It was further stated that the complainants had booked their flat under the subvention scheme wherein the Opposite Parties were to pay the Pre-EMIs to the HDFC till the date of actual possession was given. It was further stated that the Opposite Parties had been paying the Pre-EMI to HDFC Ltd upto July, 2012 and, thereafter, they suddenly stopped paying the same and the complainants had to pay Rs.81,503/- as Pre-EMI to HDFC Ltd. for the period from August, 2012 to February, 2012 (in fact 2013), vide Annexure C-17. It was further stated that the complainants were given possession of the unit after a delay of 20 months and, therefore, they were entitled to be compensated @Rs.15,000/- per month and the Opposite Parties were liable to pay Rs.3,00,000/- + interest @18%.
6. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties to pay Rs.8,37,150/-, which included Rs.11,508/- as extra amount paid by the complainants, Rs.60,000/- towards car parking, Rs.20,000/- as IDC, Rs.2,92,131/- for increased area, Rs.9027/- as service tax on increased area, Rs.15,304/- as interest on delayed payment, Rs.3 lacs as rental value and Rs.81,503/- as payment towards Pre-EMI to HDFC alongwith interest @18%; to provide car parking in front of the unit 27 GF as shown and promised in the brochure, and to pay Rs.5 Lacs as compensation for mental agony and physical harassment besides Rs.50,000/- as litigation costs.
7. The Opposite Parties, in their written version, took up certain preliminary objections, to the effect, that the complainants were not œconsumers? under the definition of the Act because they invested in the property purely for commercial purpose; that even after the intimation of offer of delivery of possession by the Opposite Parties on 12.7.2012, the complainants did not start residing in the said residential unit and that the complaint was filed by two individuals but no application under Section 12(1)(c) of the Act was filed. On merits, it was stated that the the complainants accepted the terms and conditions and covenants of the allotment letter, Annexure C-2, without any demur or protest in the year 2009 and they could not be allowed to rake up any controversy outside the ambit of the said allotment letter in the year 2012 i.e. after a period of 3 years. It was further stated that the brochure and layout plans, as offered to the complainants, were indicative and not final, in any manner, so as to thrust any obligation upon the Opposite Parties not to vary the same at a later stage any time. It was further stated that as per the condition No.10, the possession of the said premises was likely to be delivered by the Company to the apartment allottee within a period of 24 months from the date of agreement subject to force majeure circumstances. It was further stated that the offer of possession was made by the Opposite Parties to the complainants on 12.7.2012 i.e. within a period of 36 months timeline, which was a very reasonable period of time.
8. It was further stated that the complainants were bound to fulfill their financial obligations to HDFC Bank in terms of the loan agreement. It was denied that the offer of possession made vide letter dated 12.7.2012 was a counter-blast to the earlier letter dated 25.6.2012 issued by the complainants. It was further stated that rather the Completion Certificate, Annexure R-1, showed that the units stood completed and ready for habitation. It was further stated that the complainants visited the project on 19.7.2012 and pointed out certain shortcomings, which were duly noted down by the representative of the Opposite Parties, who assured that they (Opposite Parties) would require a time period of about a fortnight to finally finish the said apartment in all respects. It was further stated that the complainants post their solitary visit on 19.7.2012, failed to turn up again after the passage of a fortnight and, thereafter, indulged in coffee table correspondence. It was further stated that the Opposite Parties were not bound to answer/respond to each and every letter issued by the complainants, especially when they were asked to give them a fortnight to finish off the said apartment. It was further stated that when the complainants failed to come forward to fulfill their financial and other obligations, before taking the actual possession, the Opposite Parties were constrained to issue a letter dated 15.9.2012 seeking the balance payment of the unit in terms and conditions of the allotment letter. It was further stated that all the amounts were charged as per the terms and conditions. It was further stated that the increase in area and the subsequent increase in the amount, finally payable, was a decision entirely within the domain of the builder/developer and the builder/developer had raised a demand on that account, as per copy of MB Sheet, Annexure R-2. It was further stated that demand of interest was payable as per the account statement, Annexure R-3. It was further stated that the complainants had to come forward and get the possession of apartment after 12.7.2012 but they failed to do so. It was denied that the Opposite Parties offered open car parking in front of the dwelling unit of the complainants. It was further stated that the brochure was an offer document and was completely indicative in nature and the builder/developer had every right to designate an area for car parking, as per the final layout plan. The Opposite Parties admitted the receipt of legal notice from the complainants. It was further stated that the obligation of the Opposite Parties qua payment of Pre-EMI was only till the date of offer of possession and at no point of time thereinafter. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor did they indulge into unfair trade practice. The remaining averments, were denied, being wrong.
9. The complainants filed replication wherein, he reiterated all the averments, contained in the complaint and repudiated the same, contained in the written version.
10. The Parties led evidence, in support of their case.
11. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, partly allowed the complaint, as stated in the opening para of the instant order.
12. Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties.
13. We have heard the Counsel for the parties, and, have gone through the evidence, and record of the case, carefully.
14. The Counsel for the appellants/Opposite Parties submitted that the respondents/complainants were allotted flat bearing No.27, Ground Floor at Palm Grove, super area of which was 1525 Sq. Feet at a total price of Rs.33,75,000/- vide allotment letter dated 24.6.2009. It was further submitted that possession of the said flat was offered on 12.7.2012 (Annexure C-5). It was further submitted that the District Forum in Para 9 of its order, referring to the contention of the Opposite Parties, that the terms of allotment letter were sacrosanct, observed that the Opposite Parties did not bother even to comply with the terms and condition of the allotment letter issued by them. It was further submitted that as per Clause 9 of allotment letter, there was stipulation to the effect that œ¦¦If as a result of the above alteration etc., there is either reduction or increase in the super area of the said premises or its location, no claim, monetary or otherwise will be raised or accepted except that the original agreed rate per sq. mt/sq. ft. and other charges will be applicable for the changed area i.e. at the same rate at which the apartment was registered/booked or as the company may decide and as a consequence of such reduction or increase in the super area, the company shall be liable to refund without interest only the extra basic price and other pro rata charges recovered or shall be entitled to recover the additional basic price and other proportionate charges without interest as the case may be¦¦? It was further submitted that since the area of the flat was increased to 1675 Sq. Feet, the respondents/complainants deposited a sum of Rs.2,92,131/- for increased area plus Rs.9,027/- as service tax, without any protest. It was further submitted that the aforesaid charges were recovered, in accordance with the terms and conditions of the allotment letter. It was further submitted that the respondents/complainants took over possession without any demur. It was further submitted that it was clearly evident from Para 10 of the District Forum order, that Rs.20,000/- charged from the respondents/complainants on account of Internal Development Charges (IDC) were payable by them. It was further submitted that as per Clause 10 of the allotment letter, œ¦.The Company on completion of the construction shall issue final call notice to the Apartment Allottee who shall within 30 days thereof, remit all dues and take possession of the Apartment. In the event of his failure to take possession for any reason whatsoever, he shall be deemed to have taken possession of the allotted unit for purposes of payment of maintenance charges or any other levies on account of the allotted unit, but the actual physical possession shall be given on payment of all outstanding payments as demanded by the Company¦¦?, and, therefore, the appellants/Opposite Parties were entitled to realize such charges on account of security and maintenance. It was further rebutted that it was clearly borne out from Clause 24 of the allotment letter that the appellants/Opposite Parties were to look after the maintenance and upkeep of the common areas and facilities for which the respondents/complainants were required to deposit security and maintenance charges. It was further submitted that such charges, as per schedule appended to the allotment letter, were legally chargeable. It was further submitted that compensation of Rs.2 Lacs, awarded by the District Forum, for delay in handing over of possession, was not justified as the respondents/complainants have even been awarded pre-EMI charges to the tune of Rs.81,503/- despite the fact that delay in taking over possession was attributable to them. It was also submitted that as per Clause 10 of the allotment letter, the possession was likely to be delivered by the Company within a period of 24 months from the date of the agreement subject to force majeure circumstances. It was further submitted that time was not the essence and the period of two years was only tentative and, therefore, the question of compensation did not arise. The Counsel relied upon Chief Administrator, PUDA and another Vs. Shabnam Virk (Mrs.), (2006) 4 Supreme Court Cases 74 and M. P. Electricity Board and another Vs. Manju Singh Chauhan (Mrs.) Managing Director, Silencers India (P) Ltd., 2000 (1) SCC 290. It was further submitted that delay, if any, in delivering possession of the flat was adequately covered in payment of pre-EMIs by the appellants/Opposite Parties. It was further submitted that till July 2012, the appellants/Opposite Parties had already paid the pre-EMIs. It was also submitted that after offer of possession in July 2012, the same (offer of possession) was again reiterated in September 2013 as was evident from letter dated 15.9.2013 (Annexure C-8). It was further submitted that the respondents/complainants were at liberty to rescind the contract. While concluding the arguments, the Counsel submitted that the issue of super area was a fallacy and delay, if any, was duly safeguarded with payment of pre-EMIs and escalation in the prices of real estate. It was further submitted that the impugned order passed by the District Forum be set aside.
15. The Counsel for the respondents/complainants submitted that, no doubt, possession was offered on 12.07.2012 (Annexure C-5) but since there were shortcomings, the same were pointed out vide letter dated 26.7.2012 (Annexure C-6) but the appellants/Opposite Parties did not rectify the same. It was further submitted that while taking over possession on 01.03.2013, protest was recorded on the possession letter itself (Annexure C-9). It was further submitted that the appellants/Opposite Parties had been paying the Pre-EMI to HDFC Ltd. up to July, 2012 and, thereafter, they suddenly stopped paying the same and the respondents/complainants had to pay an amount of Rs.81,503/- as Pre-EMI to HDFC Ltd. for the period from August, 2012 to February 2012 (Annexure C-17). It was further submitted that the District Forum rightly held that the appellants/complainant were entitled to compensation for mental agony and physical harassment on account of delay on the part of Opposite Parties in handing over the possession.
16. The factum of allotment of Apartment No.27 GF in Block/Tower 27, with super built up area of approx. 141.69 Sq. Mtrs (1525 Sq. Ft) for a total consideration of Rs.33,75,000/- vide allotment letter (Annexure C-2), payment of Rs.1,00,000/- as booking amount vide receipt dated 10.06.2009, Rs.2,37,500/- vide receipt dated 2.7.2009 (Annexure C-1 Colly.), Rs.8,68,750/- vide cheque dated 27.10.2009 (Annexure C-3), Rs.47,677/- (Rs.25,000/- as Interest Free Security Deposit and Rs.22,677/- as Maintenance Charges) vide receipt dated 13.02.2013 (Annexure C-11), Rs.60,000/- towards parking charges, Rs.5,23,666/- and Rs.24,958/- on 24.1.2013, and Rs.20 Lacs in terms of loan amount, is admitted by the Opposite Parties. In all, as per the respondents/complainants, they paid a total sum of Rs.38,14,874/- against the total price of Rs.37,88,062/- demanded by the Opposite Parties vide their letter dated 15.9.2012.
17. The first question, which arises for consideration, is, as to whether, the Opposite Parties rightly charged a sum of Rs.2,92,131/- for increased area + Rs.9,027/- as service tax on the said amount, or not. To answer this question, we consider it appropriate to extract Clause 9 of the allotment letter (Annexure C-2), (each page of which is signed by the complainant/allottee), hereunder:-
œ9. THAT the Company shall, under normal conditions, complete the construction of œPalm Grove? as per the said plans and specifications seen and accepted by the Apartment Allottees with such additions, deletions, alterations, modifications in the layout, building plans, change in number, dimensions, height, size, area or change of entire scheme the Company may consider necessary or may be required by any competent authority to be made in them or any of them. To implement all or any of these changes, supplementary allotment letter, if necessary will be executed by the company. If as a result of the above alteration etc., there is either reduction or increase in the super area of the said premises or its location, no claim, monetary or otherwise will be raised or accepted except that the original agreed rate per sq. mt./sq.ft and other charges will be applicable for the changed area i.e. at the same rate at which the apartment was registered/booked or as the company may decide and as a consequence of such reduction or increase in the super area, the company shall be liable to refund without interest only the extra basic price and other pro rata charges recovered or shall be entitled to recover the additional basic price and other proportionate charges without interest as the case may be. If for any reason the company is not in a position to allot the property applied for, the company, at its sole discretion, shall consider for any alternative property or refund the amount deposited with simple interest @10% per annum.?
18. The fact of increase in the area of apartment, in question, though disputed by the respondents/complainants, yet their contention is not supported by any cogent evidence. The fact that the respondents/complainants deposited a sum of Rs.2,92,131/- + Rs.9027/- service tax without any protest implies that there was increase in the area from 1525 to 1657 sq.ft. Clearly, in view of contents of the afore-extracted clause of allotment letter, the appellants/Opposite Parties were entitled to charge amount for the increased area and thus they did not commit any illegality in charging an amount Rs.2,92,131/- plus Rs.9,027/- as service tax from the respondents/ complainants. The respondents/complainants did not produce any evidence that their consent was required for increasing the area. The District Forum, thus, erred in appreciating the facts correctly and, resultantly, returned the finding against the appellants/Opposite Parties erroneously.
19. The second question, which falls for consideration, is, as to whether, the appellants/Opposite Parties, were liable to pay pre-EMI, amounting to Rs.81,503/-, till possession of the flat was taken over by the respondents/complainants in March 2012. Clause 10 of the allotment letter, being relevant, is extracted below:
œ10. THAT the possession of the said premises is likely to be delivered by the company to the apartment allottee within a period of 24 months from the date of this agreement subject to force majeure circumstances, and on receipt of all payments punctually as per agreed terms and on receipt of completed payment of the basic sale price and other charges due and payable up to the date of possession according to the payment plan applicable to him. The Company on completion of the construction shall issue final call notice to the Apartment Allottee who shall within 30 days thereof, remit all dues and take possession of the Apartment. In the event of his failure to take possession for any reason whatsoever, he shall be deemed to have taken possession of the allotted unit for purposes of payment of maintenance charges or any other levies on account of the allotted unit for purposes of payment of maintenance charges or any other levies on account of the allotted unit, but the actual physical possession shall be given on payment of all outstanding payments as demanded by the Company. The Allottee would be liable to pay holding charge @Rs.5/- per sq ft. per month if he fails to take possession within 30 days from the date of issue of offer of possession.?
20. As per the Tripartite Agreement dated 11.9.2009 (Annexure C-19), executed amongst the complainants, Opposite Parties, and Housing Development Finance Corporation Limited (HDFC), HDFC with the consent of the builder granted a loan of Rs.20 Lacs to the complainants. The relevant part of Clause 3 of Tripartite Agreement, aforesaid, is extracted below:-
œ¦¦The Borrower has informed HDFC of the scheme of arrangement between the Borrower and the Builder in terms whereof the Builder hereby assumes the liability of payments under the loan agreement as payable by the Borrower to HDFC during the 25 MONTHS (the period be referred to s the œLiability Period? and the Liability be referred to as œAssumed Liability?). It is however agreed that during the liability period the repayment liability is joint and several by and between the Borrower and the Builder¦¦..?
21. A bare perusal of the aforesaid clause, reveals that the builder undertook to assume the liability of payments under the loan agreement as payable by the borrower to HDFC during 25 months. Had the Opposite Parties fulfilled their commitment of handing over the possession of flat within 24 months from the date of agreement/allotment, there would have been no occasion to bear this liability by the complainants, but in the instant case, not only the possession was delayed but the complainants were burdened with liability in the shape of payment of pre-EMIs. The contention of the Opposite Parties that they were not bound to deliver the possession of flat, in question, within a period of 24 months, is based upon their own interpretation of Clause 10 of the allotment letter. A perusal of contents of Clause 10 also clearly reveals that possession was to be delivered within a period of 24 months, subject to force majeure circumstances. When the words œforce majeure? were added, the same itself proved that the possession of the flat, in question, was to be delivered within 24 months and the contention that this period was tentative, is not on sound footing, as no evidence to the effect that the possession got delayed due to any force majeure circumstances has been produced. As such this plea is rejected being devoid of merit.
22. The Counsel for the appellants/Opposite Parties relied upon Bangalore Development Authority Vs. Syndicate Bank, A.I.R. (2007) 2198 S.C., to contend that the respondents/complainants, were not entitled to any interest as they took possession of the flat without raising any objection. It was further submitted that the appellants/Opposite Parties offered possession in July 2012 but the respondents/complainant, on one pretext or the other, did not come forward to take over the possession. On the other hand, the respondents/ complainants submitted that the possession, so offered, was not complete and they pointed out deficiencies/shortcomings vide their detailed letter dated 26.7.2012 (Annexure C-6). Besides the complainants vide their letter dated 25.08.2012 (C-7) addressed to HDFC with copy to the Opposite Parties refuted the claim of the appellants that possession was handed over. Finally, the respondents/complainants took over the possession on Ist March 2013 (Annexure C-9) that too under protest. It is clearly evident from Exhibit C-6, that there were deficiencies/shortcomings in the flat, and the respondents/complainants duly informed the same, vide their letters, aforesaid and, therefore, till 1st March 2013, when the possession was actually delivered to the respondents/complainants, the appellants/Opposite Parties were under obligation to pay the pre-EMIs. Thus, the finding of the District Forum that the complainants were entitled to recover the amount of Rs.81,503/- alongwith interest, is correct.
23. In Bangalore Development Authority`s case (supra), no time limit for delivery, was fixed in the brochure. Expected date of completion was incidentally mentioned, in the letter, intimating the revised costs, to the buyer`s. Under these circumstances, it was held by the Apex Court that this did not make time as an essence of the contract. It was further held that the scheme was launched by the Bangalore Development Authority, on no- profit “no-loss basis and no negligence, on the part of the Development Authority, was proved, whereas the physical possession of the houses was delivered at the original price. It was, under these circumstances, that the Apex Court held that the complainant was not entitled to any interest. The facts and circumstances of the said case, are clearly distinguishable, from the facts and circumstances of the instant case. Therefore, the submission of the Counsel for the appellants/Opposite Parties, being devoid of merit, must fail, and the same stands rejected.
24. The next question, which falls for consideration, is, as to whether the Opposite Parties were right in recovering the maintenance charges of Rs.22,677/- and Rs.25,000/- towards interest free security deposit from the complainants or not. To appreciate this controversy, we consider it appropriate to refer to Clause 24 of the allotment letter, which is extracted hereunder:-
œ24.THAT the Company shall look after the maintenance and upkeep of the Common areas and facilities until these are handed over to some body corporate or other agency nominated by the Company for maintenance, upkeep, repairs, security etc. of the building (s) including the landscaping and common areas. The Apartment Allottee agrees and consents to the said arrangement and he shall pay interest free security deposit to be worked at the time of handing over of possession on super area basis and maintenance charges determined by the company or its nominee from time to time depending upon the maintenance cost. In addition to maintenance charges, there will be contribution to the Replacement fund etc. Any delay in payments will make the Allottee liable for interest @18% per annum. Non payment of any of the charges within the time specified shall also disentitle the Apartment Allottee to the enjoyment of common service including lifts, electricity, water etc. The Allottee also undertakes to execute a separate agreement with the maintenance agency in the usual format which has been seen and approved by the Allottee.?
25. It is clear from the afore-extracted clause that complainants agreed and consented to pay interest free security deposit to be worked at the time of handing over of possession on super area basis and maintenance charges determined by the Opposite Parties from time to time depending upon the maintenance cost. Therefore, such charges were legally payable by the complainants and the payment thereof did not amount to any unfair trade practice. Thus the finding of the District Forum that the Opposite Parties were not justified in demanding an amount of Rs.25,000/- towards interest free security and maintenance charges of Rs.22,677/-, is not legally sustainable and is liable to be set aside.
26. As regards the car parking, which, as per the brochure, was to be provided in front of the flats across the road, admittedly, the Opposite parties provided the said facility by allotting the open car parking just along the entry road and erected a high wall at the original site of the car parking across the road. To this extent, the Opposite Parties were certainly deficient in rendering service to the complainants. The District Forum, thus, rightly observed that the Opposite Parties could not wriggle out of their own document viz. brochure saying that the same was completely indicative in nature.
27. In our considered opinion, no doubt, there was delay in delivering possession of the flat, in question, to the complainants, yet the same (delay) was sufficiently covered in payment of pre-EMIs in the sum of Rs.81,503/- and escalation in the prices. In these circumstances, the compensation of Rs.2 Lacs, awarded by the District Forum, is on the higher side. In our opinion, award of Rs.50,000/- as lumpsum compensation to the complainants, partly on account of delay in possession and on account of deficiency, in providing car parking as promised, would meet the ends of justice. To this extent, the impugned order needs to be modified.
28. We also feel that the interest awarded by the District Forum at the rate of 12% per annum, while refunding the amount of pre-EMIs in the sum of Rs.81,503/- to the complainants, is also on the higher side and the same needs to be reduced to 10%. To this extent also, the impugned order needs to be modified.
29. Further the interest @18% per annum, awarded by the District Forum on the amount (Rs.81,503/-) to be refunded by the Opposite Parties, on failure to comply with the impugned order within the stipulated period, in our opinion, is also on the higher side, which needs to be reduced to 12% per annum. To this extent also, the impugned order needs to be modified.
30. No other point was urged by the Counsel for the parties.
31. For the reasons recorded above, the appeal filed by the appellants/Opposite Parties, is partly accepted, with no orders as to costs. The impugned order, passed by the District Forum, is modified, to the extent, indicated hereunder;
(i) Direction No.19(i) in the impugned order, passed by the District Forum, to the extent of refunding Rs.2,92,131/- for increased area + Rs.9,027/- as service tax, Rs.25,000/- towards interest free security deposit and Rs.22,677/- as maintenance charges, to the complainants, is set aside.
(ii) The Opposite Parties are directed to refund Rs.81,503/- as pre-EMI to the complainants (claimed by them) alongwith interest @10% per annum, from the date of respective dates of deposit, till realization, within 45 days from the date of receipt of certified copy of the order.
(iii) Opposite Parties are directed to pay an amount of Rs.50,000/- to the complainants, as compensation for mental agony and physical harassment due to delay in handing over of possession of the flat and changing the place of parking, instead of Rs.2 Lacs, as awarded by the District Forum in Direction No.19(ii) of the impugned order, within 45 days from the date of receipt of certified copy of the order.
(iv) Direction No.19 (iii) in the impugned order, awarding an amount of Rs.20,000/- as litigation costs to the complainants, is upheld.
(v) In the event of non-compliance of directions in Para 31 (ii) and (iii) above within the stipulated period, the amounts mentioned therein shall be payable by the appellants/Opposite Parties alongwith interest @12% per annum from the date of default till actual payment.
(vi) All other directions, given and reliefs granted by the District Forum, in the impugned order, subject to the modifications, aforesaid, which are contrary to and, in variance of this order, shall stand set aside.
32. Certified Copies of this order be sent to the parties, free of charge.
33. The file be consigned to Record Room, after completion.