Decided on February 21,2014

Vinita Goyal Appellant


Nawab Singh, J. - (1.) THIS complaint has been filed under Section 17 of the Consumer Protection Act, 1986 (for short "the Act") before this Commission. It is the case of the complainants that they booked a flat bearing No. 203 -B, measuring 875 sq. ft., with the opposite parties in the project known by the name The Arcadia', at South City, Gurgaon. The sale consideration of Rs. 17,93,750 was paid.
(2.) IT is further the case of the complainants that as per the agreement dated May 16th, 2007 (Annexure C -2), the possession of the flat was to be delivered within 30 months of the execution of agreement subject to the payment of the entire amount due and payable by the purchasers to the vendors. The opposite parties later on increased the super area from 875 sq. ft. to 895 sq. ft. and offered the possession of the flat on April 14th, 2011, that is, after more than 52 months of the booking. The opposite parties further demanded (i) a sum of Rs. 2,50,000 on account of car parking charges and service tax thereon; (ii) Rs. 5,000 on account of misc. charges and; (iii) Rs. 65 per sq. ft. instead of Rs. 50 per sq. ft. on account of interest free security charges. In spite of the fact that the complainants had paid the entire sale consideration as per the agreement, the opposite parties failed to execute the sale -deed in favour of the complainants and to hand over the possession of the premises. As per Article 4 of the agreement (Annexure C -2), the opposite parties were liable to pay penalty @ Rs. 8 per sq. ft. per month and as per statement (Annexure C -4), a sum of Rs. 1,28,800 has accumulated towards the opposite parties as penalty on account of delay in delivery of possession. The demand on account of car parking charges is wholly illegal and unfair. Since the opposite parties are providing only 50% of the super area as carpet area, thereby keeping other 50% area as common area/common utility services, there cannot be justification for demand of separate charges for car parking area. The opposite parties are trying to resell the area by terming it as car parking area for which the complainants have already made payment. Thus, alleging deficiency in service and unfair trade practice on the part of the opposite parties, the complainants have sought the following directions: (1) to direct the opposite parties to deliver the possession of unit No. 203 -B having area of 895 sq. ft. (2) to quash the demand of Rs. 2,50,000 on account of car parking charges plus service tax. (3) to quash the demand of Rs. 5,000 on account of misc. charges. (4) to quash the demand on account of interest free security deposit to the extent, it was exceeding Rs. 50 per sq. ft. of the super area. (5) to pay penalty @ Rs. 8 per sq. ft. of the super area for delay in handing over the possession after expiry of 30 months from the date of booking till the date of handing over of possession along with interest @ 24% per annum. (6) to award compensation of Rs. 50,000 per month from the date the possession was offered on paper till the date the actual possession is being handed over; (7) to award compensation of Rs. 1 lac for causing mental harassment and agony; (8) to pay litigation expenses of Rs. 50,000. The first and foremost question arising for consideration before this Commission is as to whether the complaint in hand is maintainable before this Commission or it was required to be filed before the District Consumer Forum?
(3.) LEARNED Counsel for the complainants has urged that since the prayer in the complaint was for handing over the possession of the unit, the sale consideration whereof was Rs. 17,90,000 and the value of the illegal demand raised by the opposite parties is Rs. 4,71,618, therefore, the subject matter of the present complaint is more than Rs. 20,00,000 and less than Rs. 1,00,00,000, therefore, this Commission had the pecuniary jurisdiction to adjudicate upon the present complaint. Reliance has been placed upon (i) Ramesh Kumar Sihan Hans @ Ramesh Kumar v. Goyal Eye Institute and Others, : II (2012) CPJ 676 (NC), Consumer Complaint No. 135 of 2011, decided on March 30th, 2012 and; (ii) Kumari Ferny and Others v. Dr. Kavitha V.K. and Others, : I (2013) CPJ 34 (NC), Consumer Complaint No. 196 of 2012, decided on December 13th, 2012.;

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