BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM - X
MEHRAULI, NEW DELHI
IN RE:
SHRI SUMIT ANEJA... COMPLAINANT
VERSUS
M/S OMAXE CONSTRUCTION LIMITED... OPPOSITE PARTY
Written submissions on behalf of complainant
1. That the complaint on the basis of the advertisement, catalogue / brochure and the web site of the opposite party company applied for a shop having area 240 sq. ft. at the rate of 3950 per sq. ft. with a total - tentative cost of Rs. 94, 8000/- in their project Omaxe Arcade, Greater Noida Distt. Gautam Budh Nagar, U.P. through their authorized dealer vide his application dated 30.03.2003. The opposite made a demand of 10% amount of the price of. the said shop as the booking amount. As per their demand the complainant paid Rs. 94, 8000/- (Rs. Ninety four thousand eight hundred only) vide the cheque no. 690312, the receipt of which was duly acknowledged by the opposite party vide its receipt no. 3277 dated 01.04.2003.The copy of the receipt has been exhibited as Ex.-C1.
2. That subsequently the opposite party issued 'ALLOTMENT CUM CALL LETTER' dated 06.06.2003 along with the Price List and the Payment Plan and demanded another installment of Rs. 94, 800/- (Rs. Ninety four thousand eight hundred only). The copy of the allotment letter along with the Price List and the Payment Letter has been exhibited as Ex.-C 2. As per their demand I paid Rs. 94, 800/- (Rs. Ninety four thousand eight hundred only) vide cheque no. 690316, the receipt of the payment had been duly acknowledge vide receipt no. 4266 dated 28.06.2003. The copy of the receipt has been exhibited as Ex. - C 3.
3. That as per the agreement dated 01.09.2003 which contained the terms and conditions of the allotment. The payment plan envisaged in the terms and conditions of the said agreement for which the complainant had opted for, was the Plan B where by the complainant had to pay the construction linked interest free installments as per the completion of different phases of construction with in the said premises. The copy of said terms and conditions has been exhibited as Ex. - C 4. Before submitting the application by the complainant he was informed by the opposite party that the prices are inclusive of external development charges, common facilities charges. Further the prices are firm/escalation free and the complex/Omaxe Arcade . where the shop has been booked is AC block.
The complainant had opted construction linked payment plan.
The booking of the said shop was done as per the advertisement in 'the Web Site and through the dealer of the O.P. and it was clearly mentioned in the Web Site that the prices quoted for the shop were of AC Block. The print of this Web page has been exhibited as Ex -C5.
4. That the actual area of the said shop had been app. 150 sq. ft. whereas as per the plan the opposite party had been charging for the super area of app. 240 sq. ft. Therefore, as the complainant had been paying for the development in the complex for the super area, he had been concerned with the constructional developments in and around his shop for the purpose of making the payment of the construction linked installments. as per the clause 2A of the Agreement dated 01.09. it is clearly mentioned that the shop no.14 (U.G.) having a basis cost of Rs. 9, 48, 000/- is having appox. Super Area of 240 sq. feet which includes the covered area including walls, cupboards, window projections, balconies, plus area under common passage, stair case and mumtty etc. i.e. it is the Super Area.
It is pertinent to mention here that had the complainant been concerned with internal development of shop only, he would have made to pay only for the inner area of the shop only which has been appox. 150 sq. feet only. But as per the Agreement, the liability of the complainant w.r.t. the deal has been fixed for appox. 240 sq. feet, i.e. to say that it is the Super Area for which the complainant is making the payment. Therefore, the liability of the complainant, as per Agreement should have been related to the construction and development of the Super Area.
5. That it is pertinent to mention here that from time to time, the opposite party kept on demanding the installments which the complainant in the good faith paid initially. Later on when the complainant visited the site, he was shocking surprised to find that the phase of construction which the installment had been demanded by the opposite party either has not been completed or some times rather it had not started yet. When the complainant pointed out this fact to the site party, they on sudden occasions issued the fresh payment plan.
The opposite party had been regularly following the malpractice of demanding the construction linked installments without completing the said construction, which is quite evident from the fact that the O.P. had generated a demand letter dated 16.12 on account of 3 installments for which the construction had yet to be completed, as per the details given below:-
1. On completion of flooring = RS 94800
2. On completion of internal plaster =RS 94800
3. On completion of internal electric and
Plumbing works =RS 71000
Total Rs. 2, 60, 700/-
The copy of the said demand letter is exhibited as Ex - C6.
When the complainant visited the site, it was found that the work of flooring and electric / plumbing work had not been completed and mails dated 18.12.2004 and 30.12.2004 had been sent to the opposite party. The copy of the said mails have been exhibited as Ex - C7 & C8. In response to the said mail, the O.P. had sent a revised demand letter dated 03.01.2005 and as per that the following demands had been made:-
1. Internal plaster = Rs. 94800
2. Internal electric / plumbing works = Rs. 94800
3. External finish = Rs 71000
Total = Rs. 2, 60, 700/-
The copy of the said demand letter has been exhibited as Ex - C9.
Again on 05.01.2005 the O.P. had sent another demand letter vide e-mail wherein it had been informed that only two installments amounting to Rs. 1, 89, 600/- were due for the works mentioned here den-
Internal plaster = RS 94800
Internal electric / plumbing works = RS 94800
Total = RS 1, 89, 600/-
The copy of the said demand letter has been exhibited as Ex - C10.
On receipt of the demand letter dated 05.01. again the complainant visited the site on 09.01.2005 and found that electric work had not been completed and rather the plumbing work had not yet being started which was duly confirmed by the site supervisor Shri Arun for the reason that the location plan of the toilets etc. had been reallocated. An e-mail with regard to this had been sent to the O.P. on 10.01. mentioning all these facts and request for reversal of the demand letter. The copy of the said mail has been exhibited as Ex - C11. along with photographs
In another instance the O.P. vide letter dated 17.06.2005 had mentioned that on the request of the customers, the O.P. is not providing the flooring for the shops and had offered a rebate of Rs. 40 per sq. ft. The copy of the said letter has been exhibited as Ex - C12. It is pertinent to mention here that the O.P. vide demand letter dated 16.12.2004 had previously demanded the installment for the completion of flooring. The copy of the said letter has been exhibited as Ex-C13.
The aforementioned instances clearly establish the malafide, arbitrary unlawful attitude and functioning against the terms and conditions of the Agreement of the O.P. and it has definitely led to the deficiency of service on the part of the O.P.
6. That as per the initial plan the super area of the shop had been given as 240 sq. ft. whereas subsequently vide its letter dated 21.06. the actual super area of the shop had been 235.69 sq. ft. The copy of the said letter has been exhibited as Ex - C14. But fraudulently and with malafide intentions in the final demand the opposite party had demanded the price for 238.53 sq. ft.
The O.P vide letter dated 21.06.2005 had confirmed that on the building, the actual Super Area of the shop had q. ft. instead of 240 sq. ft. and had also informed that entire amount of Rs. 17, 024.50/- paid by the complainant shall be adjusted while making the final payment at the time of actual possession.
Subsequently the' O.P. had mentioned the final Super Area to be 238.53 sq. ft. It is beyond explanation that once the Super Area of on completion of the building has been measured to be 235.6 sq. ft., how the same became 238.53 sq. ft.
The aforementioned submissions again establish the malafide and unlawful designs of the O.P.
7. That as Per the terms and conditions the complainant was not liable to make any payment for EEC and FFEC charges whereas in the final demand letter dated 05.07.2006 the complainant was asked to pay Rs. 29, 816.25/- under these heads also which is absolutely illegal, illogical and arbitrary which shows the malafide intentions and illegal designs of the opposite party. The copy of the said letter has been exhibited as Ex - C15.
8. .That as per the terms and conditions the opposite party was to hand over the possession of the completed shop with in 24 months of the letter of allotment, failing which the opposite party was bound to pay the penalty @ 5/- sq. ft. month.
The complainant had already paid the full amount to the O.P., yet the O.P. has failed to handover the possession. It is also pertinent to mention here that the O.P. has not till date supplied the copy of completion certificate issued by the competent authority. The issuance of the completion certificate is very essential before taking over the possession. Further, the O.P. is sending undue maintenance charges to the complainant which would have been due only after the actual completion of the project and handing over of the possession.
9. That as per the demand of the opposite party, vide demand letters dated, 17.09.2003 (for two installments, of Rs. 94, 800/- each), dated .19.05.2004 (for one installment of Rs. 94, 800/-) and dated 19.07.2004 (for one installment of Rs. 94, 800/-). The payments for the above mentioned installments so demanded were paid by the complainant vide cheque nos. 030602, 151019, 532297 dated 27.09. 05.05.2004 and 29.07.2004 amount Rs. 1, 89, 600/-, 94, 800/- and 94, 800/- respectively. The copies of the said demand letter and the copies of the receipts have been exhibited as Ex - C16.
10. That after making payment of Rs. 5, 68, 800/- to the opposite party i.e. sixty percent of the tentative cost of the shop. The complainant on 08.08.2004 went to the site of construction to see the progress of work. At the site of construction on enquiry from one of the supervisors the complainant first time came to know that the complex Omaxe Arcade is not an A.C. block. The complainant again checked the web site of the co. Of Omaxe Arcade and it was confirmed that the shop booked under this complex is A.C. one and the prices being charged/paid are as per A.C. block. The complainant on the same day sent a mail to the opposite party for clarification along with the price list of the complex mentioning the prices as A.C. block. The opposite party instead of sending any clarifications changed the prices from A.C. block to non A.C. block in their web site on 10.08.2004. Same day complainant again sent a mail (copy enclosed) along with the revised/changed web site to the Co. asking for further clarifications. The complainant kept on asking for clarifications but no clarifications were given by the opposite party on this account. Copy Enclosed as exhibited as Ex - C17.
11. That opposite party sent demand letter dated 16.12.2004 under which the payment for further three installments was demanded as per details below:
1.On completion of flooring - 10% of basic price i.e. Rs. 94, 800/-
2. On completion of internal plaster - 10% of basic sale price i.e. Rs- 94, 800/-
3. On completion of internal plumbing and electrical works - 7.5% of . 71, 000/-
Before releasing further payment by the complainant, he visited the site to verify progress of work and was surprised to see that works for which the payment has been demanded have not even started. The complainant sent a mail on 18.12.2004 & 30.12.2004 to the opposite party and talked to Ms. Kajal on telephone. Ms. Kajal confirmed that flooring works have not yet been started and promised that the revised payment plan is being sent. On 05.01.2005 a mail from the customer care (Ms. Kajal) was received wherein she confirmed that only two installments amount to Rs. 1, 89, 600/- are due, which is to be paid by 15.01.2005. Regarding the issue of A.C. block of the„shop the complainant was advised to contact Ms. Sheetal in tel. no. 9818099208.'- Same day the complainant sent a mail to the customer care that only one installment of Rs. 94, 800/- (on account of completion of internal plaster shall be paid by 15.01. But surprisingly, on 06.01.2005 a demand letter dated 03.01.2005 was received from the co. wherein they had demanded 3 installments i.e. 'on completion of internal plaster (10% of basic sale price - Rs. 94, 800/-, on completion of internal electric and plumbing work (10% of basic sale price - Rs. 94, 800/- and on completion of external finish (7.5% of basic sale price - Rs. 71, 000/-. The complainant again visited the site on 09.01.2005 to see the progress for which the payment have been demanded, but the complainant was surprised to see that the internal electric work was still in progress and the internal plumbing work was not yet even started since the location of toilet blocks have been from the original location as per the site plan shown at the time of booking. The civil works of the toilet block was still in progress so the-question of completion of plumbing does not arise. A mail along with photographs of the site of construction to prove that the payments for which have been demanded are yet to be completed was sent on 10.01.2005 to the opposite party for seeking clarification. However, one installment of Rs 94800/- was released on account of completion of internal plaster 50410 dated 15.01.2005. the copy of the receipt dated 20.01.2005 of the said amount is exhibited as Ex - C18.
However on visit to the site, even the internal plaster was also not found to be completed at some places. Thereupon the complainant wrote a letter to the opposite party complaining therein about the facts to the opposite party along with the The copy of the said letter along with the photographs is exhibited as Ex - C19.
12. That the co. was in a habit of claiming payments before the completion of works which is quite evident from their own letters dated 17.06.2005 (EX - C12) wherein they had informed that as per the requests of many customers they are not providing flooring in the shops 23.04.2005 & 25.04.2005 again the complainant sent a mail to the opposite party complaining therein that the opposite party had demanded the installments for the phases of constructions which had not been completed and explaining therein the reasons for with holding the demanded installments. The copy of the said letter and the supporting photographs have been exhibited as E X- C 20
On 26.04.2005 a mail (copy enclosed) was received from the opposite party wherein it was mentioned that they had acknowledged my mail dated 25.04.2005 and informed that they will revert back by 27.04.2005 evening. A reply through mail was received from the opposite party on 03.05.2005. The copy of the mail enclosed as exhibited as Ex - C21, wherein it was mentioned that the status for which the payments have been demanded is pertains to your individual shop only. The payment can not be held back on basis that the same level of activity has not happened in the entire complex as confirmed by your site in-charge the status of your shop no. 14 is completed up to external finish and again requested for the payment. Immediately on receipt of this reply the complainant replied back on 04.05.2002. the copy of the said mail is exhibited as Ex -C22, wherein it was informed that as per the terms of the agreement the payment is to be released after the completion of plumbing works since there is no plumbing work in the shops it is evident that the payment is to be released after the completion of the plumbing works in toilets. Further the internal electric works were not yet completed since the electric switches was still to be provided. It is worthwhile to mention that the complainant is paying for the super area of the shop as such he is concerned about the payments to be released after the completion of the activity at the same level in the entire complex. The super area for which the complainant is paying 240 sq. ft. whereas the actual area of the including walls is nearly 150 sq. ft. from which it is quite evident that the payment amounting to Rs. 3, 50.000/- is being paid on account of common areas/common facilities external development charges etc. On 10.05.2005 a telephonic call was received from Mr. Alok Gupta, Vice President (Commercial) of the co. to whom all the facts were explained, he interim requested that one installment of Rs. 94, 800/-(being 10% of the basic sale price, be released and 2nd installment should be released only after completion of the electric and plumbing A mail to this effect (copy enclosed) was also mailed to Ms. Nisha sareen and Mr. Alok Gupta. The copy of the said mail is as Ex - C23. There was no denial from the O.P.
The O.P was adopting the malpractice of demanding the installments payments without the completion of jobs / work which is quit evident from the demand letters dated 16.12. 03.01.2005 and 5.01.2005 issued within a span of 20 days.
13. That on a letter dated 21.06.2005 (Ex - C14) was received from the opposite party on completion of the building of the said project the actual super area of my shop is 235.69 sq. ft. against 240 sq. ft. as initially booked thereby resulting in decrease in 4.31 sq. ft. in super area and amount of Rs. 17, 024.50/- shall be adjusted with the final payment at the time of handing over of actual possession of the said shop.
14. That as per their demand letter dated 13.07.2005 a revised payment schedule was sent by the opposite party after adjusting the extra amount of Rs. 17, 024.50/- an amount of Rs. 56, 203.56/- may please be paid on account of completion of external finish. Accordingly payment amounting to Rs. 56, 000/- was paid vide cheque no. 504730 dated 04.08.2008. The copy of the said schedule of payment dated 13.07.2005 and the copy of the receipt dated 09.08.2005 of the said payment have been exhibited as Ex. -C24 & Ex -C25 respectively
15. That the opposite party demand letter dated 17.10.2005 was received by the complainant and amount of Rs. 1, 10, 026, 73/- was demanded on account of completion of flooring 100% additional charges. This amount was paid vide cheque no. 183857 dated 28.10.2005. The copy of the demand letter and the receipt of the payment have been exhibited as Ex - C26 & Ex - C27.
16. That in reply to the contents of para no. 16 of the written statement it is to be submitted that as already submitted in foregoing para, that the O.P vide letter dated 21.06.2005 had confirmed that on completion of the building, the actual Super Area of the shop had been 235.6 sq. ft. instead of 240 sq. ft. and had also informed that entire amount of Rs.17024.50/- paid by the complainant shall be adjusted while making the final payment at the time of actual possession.
Subsequently vide letter dated 05.07.2006 the OP. had mentioned the final Super Area to be 238.53 sq. ft. It is beyond explanation that once the Super Area of on completion of the building has been measured to be 235.6 sq. ft., how the same became 238.53 sq. ft.
To this-regard, the complainant had sought a clarification from the O.P. But till date no clarification on the aspect has been received by the complainant.
17. That the complainant has already made a payment of Rs. 9, 24, 400/- against the basic sale price of Rs. 9, 30, 975.50/- taking into 'consideration of super area of 235.69 sq. ft. This super area has already been confirmed by the opposite party on 21.06.2005. As per the original contract and actual super area of 235.69 sq. ft. The balance amount due to be paid to the opposite party is Rs. 6, 575.50/-against the, basic sale price. As per agreement the following additional charges are also to be paid at the time of taking possession:
• Interest free maintenance security - Rs 10, 000/-
• Power back-up charges for 3 K V A @ Rs 10, 000 per KVA - Rs 30, 000/-
• Total - Rs 40000
18. That as per the statement of the account the opposite party had demanded an interest of Rs. 12, 007.36/- for delayed payment by the complainant. But subsequently during the discussion with Ms Sheetal Gupta of the O.P. on 10.07. she had agreed that all the payments have been received in time and hence, no payment on account of interest was due from the complainant.
19. That although the opposite party had demanded for the final payment, but on visit to the site by the complainant on 16.07. it was found that, still the work on the site viz. entrance door and electrical accessories, the false ceiling, the final finishing and other, works had not yet being completed. It was duly intimated to the opposite party by the complainant through registered post as well as e-mail. The copy of said letter along with the postal receipt and the supporting photographs have been exhibited as Ex - C28.
20. That the complainant had again written to the opposite party to redress his grievances with regard to the completion of the said premises and not to indulge in the unfair trade practices on 14.09.2006. The copy of the said letter is exhibited as Ex - C29. But the opposite party failed to fulfill their obligation by which they were bound by the terms and conditions of the agreement.
21. That as per the terms and conditions and the price of the said shop, the balance due to be paid by the complainant to the opposite party had been Rs. 46, 575.50/- whereas the opposite party had illegally and by malafide intentions, sent the demand letter for Rs. 1, 00, 164, 36/- . As per the demand letter dated 05.07.2006 it was mentioned that the contents of the statement shall be deemed to be correct, unless informed about any discrepancy within 7 days from the date of this letter. Accordingly complainant along with the necessary documents visited their office to sort out the matter. The matter was discussed with Ms. Sheetal Gupta on 10.07.2006 in the following four issues were discussed exhibited as Ex - C30 :
• Interest on account of delay remittance - Rs. 12, 007.36/-
• EEC and FFEC charges @ 125/- per sq. ft, - Rs. 29, 816.25/-
• Amount due to the complainant on account of delayed construction / possession.
• Discrepancy in exact super area, exact carpet area of shop and the basic of calculation of super area.
22. During discussions Ms. Sheetal Gupta called for the relevant docuents after going through she admitted that all the payments have been received in time and no payment on account of delayed payment is to be paid. Secondly regarding EEC and FFEC charges she admitted although there is no clause in the agreement for the payment of these charges but these are the additional charges which are being charged by the other builders and hence shall have to be paid by you. It is pertinent to mention here that the parties are bound by the terms and conditions of the agreement and opposite party can not demand-any. amount which is not envisaged in the terms and conditions of the agreement.
23. That the complainant tried his best to sort out this issue without any further delay but no response was received from the Co. Further reminder mail sent on dated 14.09.2006 (copy enclosed) since no reply was received; a legal notice by the complainant lawyer was sent on 16.10.2006 along with balance payment of Rs. 46, 600/- was sent o the opposite party (copy enclose). Further two mails dated13.12.2006 and 29.12.2006 were sent to the opposite party requesting them for handing over the possession since the full amount due have already paid. Copy of the legal notice along with the postal receipt is exhibited as Ex - C31.(For which O.P has not sent the payment receipt till date)
24. That in-spite of handing over the possession the opposite party had started demanding the Maintenance charges and interest of the above said shop The copy, of the said demand letter is exhibited as Ex - C32. It is pertinent to mention here that since the party had failed to give the possession of the shop to the complainant inspite of his making the full payment, no maintenance charges are to be paid by the complainant.
25. That as per the agreement the total time of completion/handing over of the possession is two years incase the possession within a period of two years, the opposite party shall be liable to pay damages for the period of the delay in handing over the possession at the rate of Rs.5/- per. Sq. ft per month (from the date of allotment i.e. 6th July)
It is mention here that the construction of shop had not been completed within stipulated time of two years. Further, the OP. had failed to supply the copy of completion certificate which is authentic document to prove the actual date of completion. The possession of the shop is still with the opposite party for the reasons best known to them only. Nothing extra is payable by complainant on account of maintenance charges, holding charges. On the other hand the opposite party is liable to pay the delayed possession charges till the final possession to the complainant as envisaged in the terms of the Agreement.
26. That the complainant has suffered a financial loss of app. Rs.2, 00, 000/- on account of the default / deficiency on the part of opposite party in not handing over the possession of the said shop to the complainant possession in the prescribed time to the complainant and the opposite party had illegally and malafidely kept on demanding the payments from the complainant exorbitantly. This clearly establishes the Deficiency of Service by the opposite party.
That the Hon'ble Forum has got the jurisdiction to entertain and try and adjudicate upon the present complaint.
It is most respectfully prayed before the Hon’ble forum that: –
1. The opposite party may kindly be ordered/directed to handover the possession of the premises to the complaint without making demands of payment not envisaged in the terms & conditions of the agreement
2. The opposite party may kindly be ordered/directed to pay sum of Rs 2, 00, 000/- along with the interest @ 18% p.a as compensation/damages to the complainant because as per agreement O.P was suppose to handover possession by June.
3. The opposite party may kindly be directed/ordered to pay the penalty @ R.s 5/- SQ.FT/month along with interest @ 18% p.a for the delay in handing over the possession to the complainant
4. The OP may please be directed to hand over the completion certificate.
5. The opposite party may kindly be directed/ordered to pay the cost of the complaint to the complaint and against the opposite party.
Any other order, which this Hon’ble court may deem fit and proper, may be passed in favour of the complainant and against the opposite party.
Delhi. COMPLAINANT
Dated
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