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2018 SCC OnLine NCDRC 277

In the National Consumer Disputes Redressal Commission at New Delhi

(Against the Order dated 23/02/2018 in Complaint No. 633/2017 of the State
Commission Punjab)
1. Vision India Realtors Pvt. Ltd. & Anr. Show Room No. 1-2,
Nirwana Greens-2, Nirwana Square, Chandigarh-Ropar Road,
Kharar. Greater Mohali. Punjab.
2. Mr. Sumit, Director Vision India Realtors Pvt. Ltd. Show Room
No. 1-2, Nirwana Greens-2, Nirwana Square, Chandigarh-Ropar
Road, Kharar. Greater Mohali. Punjab … Appellant(s);
Versus
Sanjeev Malhotra R/o C1A-57A, Janakpuri. New Delhi-110058 …
Respondent(s).
First Appeal No. 855 of 2018
Decided on June 13, 2018
For the Appellant: Mr. Devmani Bansal, Advocate
For the Respondent: In person
ORDER
V.K. JAIN, PRESIDING MEMBER (Oral):— The complainant/respondent who is an
advocate by profession and is present in person, booked a residential flat with the
appellant in a project namely ‘Nirwana Greens-4’ which the appellant was to develop
at Kharar. Vide allotment letter dated 12.12.2012, flat no. 1612, in the aforesaid
project was allotted to him for a consideration of Rs. 16,75,000/-. He having already
paid Rs. 2,00,000/-, the balance payment was to be made as per the following
installments:
Installment No. Due Date Amount
a) First 7.12.12 135000/-
b) Second 7.2.13 125625/-
c) Third 7.4.13 125625/-
d) Fourth 7.6.13 125625/-
e) Fifth 7.8.13 125625/-
f) Sixth 7.10.13 125625/-
g) Seventh 7.12.13 125625/-
h) Eighth 7.2.14 125625/-
i) Ninth 7.4.14 125625/-
j) Tenth 7.6.14 125625/-
k) Eleventh 7.8.14 125625/-
2. It is an admitted position that the complainant/respondent made timely
payment of all the 11 installments. Vide letter dated 20.04.2015, the appellant
demanded a sum of Rs. 1,81,375/- from the complainant comprising a sum of Rs.
83,750/- towards basic price balance, Rs. 58,625/- towards service tax, Rs. 30,000/-
towards External Electrification Charges and Rs. 9,000/- as IFMS (Interest Free
Maintenance Security). The complainant was requested to pay the aforesaid amount so
that the appellant could offer the possession of his flat. The delay in payment was to
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automatically lead to delay in possession of the flat. Since the aforesaid demand was
not paid, a reminder letter dated 06.02.2016 was sent to the complainant after adding
interest of Rs. 29,020/- and thereby making a total sum of Rs. 2,12,489/-. The
payment demanded in the aforesaid reminder letter also having not been made, the
appellant issued a final demand notice dated 25.03.2017 after including a sum of Rs.
84,267/- towards interest and Rs. 50,000/- towards Flat Holding Charges thereby
making a total sum of Rs. 3,32,392/-. Being aggrieved, the complainant approached
the concerned State Commission by way of a consumer complaint.
3. The complaint was resisted by the appellant which sought to justify the demand
raised by it.
4. The State Commission vide impugned order dated 23.02.2018, directed as
under:
“(i) OPs are directed to deliver the possession of the flat in question, complete in all
respects as per the specifications incorporated in buyer's agreement dated
12.12.2012 within a period of 30 days from the date of Consumer Complaint No.
633 of 2017 12 receipt of the copy of the order passed by this Commission. At
the time of delivery of the possession, the complainant will pay Service Tax,
IFMS charges or any other charges due to him according to the terms and
conditions of the agreement.
(ii) the OPs will pay interest on the deposited amount of Rs. 15,91,245/- @ 9% p.a.
from 7.8.2015 to 19.4.2017.
(iii) pay Rs. 50,000/- as compensation on account of mental tension, harassment
etc. for non-delivery of the possession within the agreed time.
(iv) to pay Rs. 11,000/- as litigation expenses.”
5. Being aggrieved, the appellant is before this Commission by way of this appeal.
6. During the course of hearing, it was submitted by the learned counsel for the
appellant that the completion certificate in respect of the project was obtained by the
appellant on 15.03.2016. A copy of the communication dated 15.03.2016 from
Municipal Council, Kharar has been placed on record. It is therefore, evident that the
completion certificate having been received only on 15.03.2016, the appellant could
not have offered legal possession of the apartment to the complainant at any time
before that date. As noted earlier, the amount of Rs. 1,81,375/- was demanded on
20.04.2015 and the amount of Rs. 2,12,489/- was demanded on 06.02.2016. The
complainant was requested to pay the aforesaid amount so that the appellant could
offer the possession of the flat. The said offer of possession was meaningless being
unlawful as the requisite completion certificate had not been obtained by that date.
Moreover, in addition to the balance sale price and service tax, the appellant
demanded a sum of Rs. 30,000/- towards External Electrification Charges. As rightly
found by the State Commission, the agreement between the parties did not provide
for payment of External Electrification Charges, over and above the sale price of the
flat. Therefore, demand of External Electrification Charges was illegal and the
complainant was not bound to pay the same.
7. It has also been noticed by the State Commission that as per the agreement
between the parties, the IFMS (Interest Free Maintenance Security) was payable
within 30 days from the offer of possession. Since the possession could not have been
offered vide letters dated 20.04.2015 and 06.02.2016, the demand of IFMS contained
in the aforesaid letters would also be illegal and unjustified.
8. The appellant had received the completion certificate by the time the final
demand notice dated 25.03.2017 was issued. However, the said notice also included
demand for External Electrification Charges which were not payable by the
complainant. Offering possession on the payment of charges which the flat buyer is
not contractually bound to pay, cannot be considered to be a valid offer of possession.
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Moreover, no offer for possession was made in the possession letter dated 25.03.2017
which was in the nature of a notice informing the complainant that on his failure to
pay the amount demanded therein, the allotment would be cancelled. Hence, even the
final demand notice dated 25.03.2017 cannot be considered to be a valid offer of
possession.
9. Since no valid offer of possession of the flat was made by the appellant to the
complainant/respondent, the order passed by the State Commission is justified and
does not call for any interference by this Commission in exercise of its appellate
jurisdiction. The appeal, being devoid of any merits, is hereby dismissed.
———
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