Bharatkumar Pandya, Member
The present first appeal has been filed by the appellant/OP challenging the order dated 16.08.2022 passed by Delhi State Commission in C.C. No. 244/2020 No. wherein State Commission passed an ex-parte order and directed to refund the excess amount realised (Rs. 9 lacs), or unreasonably charged interest on amounts of VAT (Rs. 2,78,728), totalling to Rs.11,78,728/-, with interest. The prayer made in the complaint alongwith the brief facts of the case, as mentioned in the State Commission's order are as under:
2. Brief facts necessary for the adjudication of the present complaint are that the complainant is the mother of the original allottee namely Mrs, Archana Chhabra and was duly added as a purchaser of the flat in question by the opposite party vide supplementary agreement dated 29.06.2017. An agreement dated 09.06.2014 was executed between the original allotee and the opposite party for the apartment bearing no. D-1402 in the project 'RMZ Galleria Residences' situated on Bangalore Bellary Road, Yelahanka, Bangalore - 560064. As per the said agreement, the total consideration of the said apartment is Rs. 1,54,39,000/- but the opposite party had taken an amount ofRs. 1,73,23,724/- from the complainant till date. More so, the opposite party offered Rs. 9,00,000/- as loyalty discount to the buyer but failed to adjust the same towards cost of the apartment. The opposite party further failed to provide the breakup of Rs. gl,73,23,724/- taken from the buyer. The complainant sent legal J;/notice dated 26.12.2019 to the opposite party seeking clarifications for the excess amount taken from her but no satisfactory response was given by the opposite party.
1.1 Prayers in the complaint were as under:
a) Direct the OP to provide the documents of (each and all) corresponding entry against the total amount Rs. 1,73,23,724/- taken by the OP or expenses and charges levied over and above the actual cost for the flat may kindly be explained and justified with the authentic certificate
b) Direct the OP to produce and give receipt of Payment of Rs. 10 Lakh paid through Ch. No.000074, HDFC Bank dt.27.06.2017 along with the receipt of TDS against the same.
c) Direct the OP to give details cheque no. of Receipt no. 175 of Rs.57300/ taken against the Gas connection.
d) Any other order or direction which this Hon'ble Court may deem fit, proper and Judicious under the circumstances of the case may also be passed.
2. The findings, as recorded by the State Commission in order dated 16.08.2022 for concluding the deficiency in service and the compensation as granted, are as under:
6. The only question for consideration before us is whether the Opposite Party is deficient in providing its services to the Complainant.
7. Perusal of Agreement dated 09.06.2014 (Annexure A~4 of the complaint) reflects that the total consideration of the apartment bearing no. D-1402 in project 'RMZ Galleria Residences' was Rs. 1,54,39,000/-. The fact of loyalty discount of Rs. 9,00,000/- given by the builder was duly admitted by the opposite party in reply dated 18.01.2020 (Pg. 49 of the complaint). However, the same was not deducted from the cost of the apartment in question and the said fact is evident from the price break-up of Rs. 1,73,23,724/- issued by the opposite party (Pg. 51 of the complaint).
8. It is pertinent to note that price break-up issued by the opposite party shows Rs. 2,78,728/- as interest on delayed ST (Service Tax) and VAT (Value Added Tax), which is unjustified in the present case as the complainant had already paid more than the basic price of the apartment. After deducting the loyal discount of Rs. 9 lakhs and interest on delayed ST & VAT, the amount which was payable for the apartment in question by the complainant is Rs. 1,61,44,996/-but the opposite party usurped Rs. 1,73,23,724 from the buyer.
9. In view of the aforesaid, the opposite party is deficient in providing its services to the complainant as the builder had taken an amount of Rs. 11,78,728/- from the complainant without any justification. More so, the opposite party failed to fulfill their assurance with respect to loyalty discount towards the cost of the apartment.
10. Keeping in view the facts of the present case as discussed above, we direct the Opposite Party to refund the excess amount i.e. Jis. 11,78,728/- taken from the complainant along with interest as per the following arrangement;
A. An interest @6% p.a. calculated from 12.10.2020 (date on which the present complaint was filed) till 16.08.2022 (being the date of the present judgment);
B. The rate of interest payable as per the aforesaid clause (A) is subject to the condition that the Opposite Party no. I pays the entire amount on or before 16.10.2022;
C. Being guided by the principles as discussed above, in case the Opposite Party no. 1 fails to refund the amount as per the aforesaid clause (A) on or before 16.10.2022, the entire amount is to be refunded along with an interest @ 9% p.a. calculated from 12.10.2020 till the actual realization of the amount.
3 There is specific legal objection raised by the appellant towards the lack of territorial jurisdiction of the State Commission in dealing with the complaint and in passing the impugned order. Further, it has been noted in the State Commission's order that the notice of the complaint was served by the complainant on e-mail ID corpsec@rmzcorp.com, and despite such service, neither any reply was filed nor any appearance was entered, and therefore the matter was proceeded ex parte. It is the specific contention in the appeal that the e-mail ID on which the notice was served was the corporate secretariat e-mail ID used only for compliances and communications with Ministry of Corporate Affairs, and hence not used by or available to the marketing or customer relations department of the appellant. It is alleged that the respondent had communicated for multiple times with the appellant on e-mail ID gen@rmzcorp.com which, and even the whatsapp number available with the respondent were deliberately not used to communicate the notice of the complaint despite such directions by the State Commission, in letter dated 13.12.2018 also the e-mail ID ofgen@rmzcorp.com was mentioned. Neither the hard nor the soft copy of the complaint was duly served on the appellant. It is further stated on merits that through the e-mail communication dated 26.09.2016 and subsequent mail-reply dated 06.09.2019 to the notice issued by the complainant-respondent, it was communicated that loyalty bonus of Rs. 9 lacs is duly adjusted against the third instalment and detailed statement of account was also provided, and moreover, it would also be clear from the fact that as against the stipulated amount of 3rd instalment of Rs. 1,07,97,300/- an amount of only Rs.98,97,300/- has been paid by the respondent through 4 cheques on 28th and 29th of January 2015. Therefore the state commission has made serious error in rendering a factual finding that the bonus amount was not deducted, which finding is contrary to facts on record. Consequently, the further finding of the State Commission that "in the present case the complainant had already paid more than the basic price" to support the grant of relief of refund of interest on ST and VAT of an amount of Rs. 2,78,728/-, which was charged strictly as stipulated in the agreement, has no legs to stand. Vide letter dated 27.12.2016, the Appellant had informed the Respondent that the Occupancy Certificate was received and the apartment was ready for delivery of possession and that the respondent was to pay the remaining amount within 7 days of the intimation. Respondent paid a total of Rs.1,64,23,724/- vide various instalments between the period 20.04.2014 to 21.06.2017 as against otherwise due amount of Rs. 1,73,23,724/- as detailed under:
| DATE | AMOUNT (in INR) | PAYMENT TOWARDS | REF: PG. NO. OF REPLY TO APPEAL |
| 20.04.2014 | 10,00,000 | First Installment | 69 |
| 18.05.2014 | 36,31,700 | Second Installment | 70 |
| 28.01.2015 | 25,00,000/- | Third Installment [Rs. 1,07,97,300 minus 9,00,000/- = 98,97,300/-] | 72 |
| 28.01.2015 | 25,00,000/- | 73 | |
| 29.01.2015 | 23,97,300/- | 74 | |
| 29.01.2015 | 25,00,000/- | 75 | |
| 26.06.2017 | 2,23,470 | Contingency fund (Rs. 1,43,250/-) and Maintenance Charges (Rs. 80,220) | 76 |
| 26.06.2017 | 6,71,154 | Other charges | 77 |
| 21.06.2017 | 10,00,000 | Other charges | 68 |
| Total | 1,64.23,623/- | ||
Respected Sir:
Most respectfully I submit as under:
(1) That the cost of my abovenoted flat was Rs. 1,60,23,970/-
(2) That Loyalty Discount of Rs.9,00,000/- (Ref Doc. RESI/GAL/CN/ 2014-15/D-1402 offered by your esteem organisation has not been reduced from the Cost of above flat.
(3) In fact, the cost towards aforesaid flat after adjusting Loyalty Discount of Rs.9 Lac., should have been Rs.l 51,23970/- only, whereas I was asked to pay Rs. 164,80524/- [Statement dt.29.10.2018 annexed, sent to you by my chartered Accountant]
I most humbly request Your gracious honor to kindly look into the matter and refund the money back to me which has been charged excess by your organisation erroneously from me.
My Bank details are as under:
3.2 Appellant replied to the said letter by email explaining that the loyalty discount of Rs.9 lakhs was deducted (given credit note) from the third instalment of the payment schedule and according lesser amount was paid which was duly accepted. Along with this letter, the Appellant also further attached the statement of accounts. Inspite of explaining the whole position, respondent sent a legal notice dated 26.12.2019 to the appellant to explain as to how the loyalty discount was adjusted in the consideration and also to furnish a breakup of the Rs. 1,64,23,624/- paid by them. Appellant provided a clarification to the same through a letter dated 18.01.2020 and also provided a breakup of the amount paid. However, Respondent preferred to file consumer complaint before the Delhi State Commission on 12.10.2020, which resulted into the impugned order. Challenging the above order of State Commission, the appellant/OP developer filed the present First Appeal on the grounds that the State Commission erroneously passed an ex-parte order against them. The following specific grounds on merits, in substance, were raised, apart from the grounds on maintainibility of the complaint on jurisdictional grounds and service of notice:
1. State Commission erred in holding that the total consideration for the apartment was Rs. 1,54,39,000/-. As per Clause 2 on Page 9 of the Agreement, Rs.1,54,39,000/- was only the basic sale consideration of the apartment and not the total value. The amounts that were to be charged over and above the base consideration were clearly mentioned in the Agreement to Sell and the registered Sale Deed.
2. State Commission failed to appreciate that multiple clarifications were issued by the appellant to the respondent with respect to the adjustment of the loyalty discount of Rs.9,00,000 and further breakup of Rs.1,64,23,724/-.
3. As per the Agreement to Sell, the total amount that was to be charged was Rs.1,74,97,216/- inclusive of the amounts charged in addition to the basic sale consideration. On this amount, a compensation of Rs.1,73,492/- was given to the respondent due to delay in handing over the possession of the apartment. A loyalty discount of Rs. 9 lacs was further granted to the Respondent. Thus, the total amount that was to be paid came to Rs. 1,64,23,724/-. State Commission failed to appreciate various clarifications in this regard given on a number of occasions.
4. State Commission was incorrect in holding that Rs.2,78,723 charged as interest on delayed Service tax and Value Added Tax was incorrectly charged as clause 8(b) of the Agreement entitles the appellant to grant extension for payment of any instalment but subject to payment of interest.
5. State Commission failed to note non-joinder of necessary party i.e., Archana Chhabra and she was intentionally not made as party to the proceedings.
4. The primary issue of jurisdiction which was raised by the appellant was decided by this Commission vide its order dated 26.10.2023, which is reproduced below:
"Heard learned counsel for the appellant and Ms. Reena Rao, learned counsel representing the respondent.
From a perusal of the facts which are on record, it is more than obvious that the respondent herein is facing serious life threatening health issues which have been indicated also in the original complaint that was filed before the Delhi State Consumer Disputes Redressal Commission. The fact that the original allottee is the daughter of the present respondent is undisputed and further the medical health status of the respondent as well as her daughter indicate sufferance from unfortunate terminal diseases.It is in this extreme situation that this Commission has to consider the issue of territorial jurisdiction having been raised by the appellant to the effect that the Delhi State Consumer Disputes Redressal Commission had no jurisdiction to entertain the complaint in as much as the property is situated in Bangalore and a recital about the said fact relating to jurisdiction under clause 30 of the original agreement read with clause 6 of the agreement, makes it clear that the case would prima facie fall within the territorial jurisdiction of Bangalore.
Nonetheless, in spite of this issue and also the issue of condoning the delay prima facie tend in favour of the appellant, yet keeping in view the peculiar facts and circumstances, the appeal may have to be entertained without running the risk of creating any incorrect precedence on jurisdiction.
Learned counsel for the appellant therefore may bring forth an affidavit with an . offer to amicably settle the dispute without any further adjudication.
This order is being passed without prejudice to the rights of the parties to contest the appeal. "
5. Vide order dated 11.03.2024, the IA/11781/2022 filed by the appellant for condonation of delay was decided, and, the contentions of the counsel for the appellant were recorded. The said order dated 11.03.2024 is reproduced below:
"IA/11781/2022
This is an application for condonation of delay of 88 days. Heard learned counsel for the appellant and the learned counsel for the respondent. Prayer has been made to condone the delay on account of non-receipt of documents and other legal hurdles. Having considered the submissions made the cause shown is sufficient. The delay is condoned. The application is allowed and the appeal is treated to be within time.
Appeal
The appeal was entertained on 03.01.2023 and notices were issued on the memo of appeal as well as on interim applications. An interim order was also granted staying the operation of the impugned order dated 16.08.2022. The matter was looked into by this Commission on 03.05.2023 and the court sought the assistance of the learned amicus curiae for taking the case forward. The amicus curiae sought discharge, which was allowed on 21.07.2023, as the respondent had already been extended the benefit of legal aid.
The appeal raises an issue of patent lack of jurisdiction with the Delhi State Consumer Disputes Redressal Commission keeping in view the provisions of Section 17 (ii) (a) of the Consumer Protection Act, 1986, which is extracted herein under:
"(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain."
It is urged that the State Commission had no territorial jurisdiction to entertain the complaint as the entire cause of action exists only within the jurisdiction of the Karnataka State Commission at Bangalore, hence the complaint could not have been entertained at Delhi. A copy of the agreement to sell dated 09.06.2014 has been brought on record and the same does not indicate the existence of any office orbranch office of the appellant at Delhi. This is also not the case taken by the respondent/ complainant. Under the various clauses of the agreement, it is evident that any cause of action giving rise to the dispute is said to be within the jurisdiction of the courts at Bangalore.
The appellant had not appeared to contest the complaint and therefore vide order dated 09.04.2021, the State Commission proceeded ex parte against the appellant.
The present appeal has been filed and the appellant has taken a clear ground that clause 30 of the agreement categorically recites that the territorial jurisdiction in disputes arising between the parties shall be within the territorial jurisdiction of the Bangalore courts.
At first flush it did appear that the territorial jurisdiction of the State Commission at Delhi is wanting and cannot be stretched by any means. Nonetheless, the complainant/ respondent cannot be rendered remediless on account of this choice of forum and hence the complaint can be instituted within permissible limits of law.
In view of the aforesaid position that emerged, even though this forum had attempted to bring about conciliation, as is evident from the orders dated 26.10.2023 and 08.12.2023, yet there does not seem to be any possibility of the parties arriving at an agreement. Thus, in the wake of the arguments aforesaid and the position of the provisions of the Consumer Protection Act, this appeal deserved to be allowed on the short ground of want of territorial jurisdiction as per Clause 30 of the agreement.
Before the order could be signed, the matter was again heard and it is evident from the record that the present appeal arises out of a decision of the Delhi State Consumer Disputes Redressal Commission, New Delhi in complaint no. 244 of 2020, which was instituted on 12.10.2020. Thus, this was a complaint instituted after the Consumer Protection Act, 2019 was notified, and was governed by the provisions of the Consumer Protection Act, 2019.
One of the grounds taken in this appeal is that the State Commission of Delhi had no territorial jurisdiction in the matter and reliance has been placed on clause 30 of the agreement to sell dated 09.06.2014 and clause 24 of the registered sale deed dated 07.08.2017 stating that all matters relating to or arising out of the deed will be subject to the courts in Bangalore.
The Bench was proceeding under the impression as if the complaint had been instituted at Delhi and therefore it would not lie within the jurisdiction of the Delhi State Commission in terms of the provisions of the Consumer Protection Act, 1986 or. the 2019 Act. But in the instant case even if the property has been dealt with way back in the year 2016-2017, the complaint has been filed at Delhi in October, 2020. On the date when the complaint was instituted, the Consumer Protection Act, 2019 had come into force and therefore provisions of Section 47 are clearly attracted. Consequently, Section 47 (iv) (d) of the Consumer Protection, 2019 would apply and is extracted herein under:
"(d) the complainant resides or personally works for gain. "
Thus, in view of the Section 47 (iv) (d), which is extracted herein above the objection taken in the appeal for lack of territorial jurisdiction cannot withstand the scrutiny of law. The statutory provision overrides the clauses of the agreement and the complainant has rightly elected to file the complaint at Delhi. Thus, this objection with regard to the territorial jurisdiction is overruled.
It is by now well settled by the Apex Court that even if a pronouncement has been made in open court but not signed, the order can be altered after putting the parties to notice. I have again heard learned counsel for both the parties keeping in view the law laid down by the Apex Court in Vinod Kumar Singh Vs. Banaras Hindu University & Ors., (1988) Vol. 1 SCR Page 941. The view of treating the complaint to have been filed beyond the territorial jurisdiction is revised and the appeal therefore cannot be dismissed on that count.
There are other matters relating to the merits of the claim and the learned counsel for the appellant is directed to advance her submissions on the merits of the appeal on the next date fixed. "
6. Order dated 16.04.2024 passed by this Commission, calling upon the parties to file affidavits on the merits of the matter is reproduced below:
"It is contended by the appellant that the State Commission has proceeded to award an amount of Rs. 11,78,728/-, Rs.9,00,000/- being on account of loyalty discount, which according to the complainant/respondent, had not been deducted and Rs2,78,728/- as interest on delayed service tax and value added tax. It is urged on behalf of the complainant that these two amounts have been righty directed to be refunded as these were excess charges realized.
Learned counsel for the complainant contends that since the appellant had been proceeded ex-parte, the correct facts pertaining to the said amounts were not placed before the Commission and, according to the appellant, the break-up of the amount has been indicated in the appeal at internal page 5 and 6 thereof. A perusal of the said averments indicate that the sum of Rs.9,00,000/- was, according to the appellant, adjusted while the third instalment was being satisfied by the complainant for which payments were made on 28.01.2015 and 29.01.2015. Three payments of Rs. 25,00,000/-each plus another payment of Rs.23,97,300/- was made on the said dates which was a total of Rs.1,07,97,300/- from which the said loyalty discount of Rs.9,00,000/- was deducted and Rs.98,97,300/- was adjusted in the account of the complainant. This is how the third instalment was paid by the complainant to the tune of Rs. 98,97,300/- as against the amount which was due to the tune or Rs.1,07,97,300/-. A chart has also been handed over by the learned counsel for the appellant to that effect.
Coming to the interest paid on service tax and value added tax to the tune of Rs.2,78,728/-, it has been stated in para-8 of the appeal that the complainant had been intimated through her daughter on 16.07.2014, 08.01.2015 and 31.03.2015 for payment of service tax and value added tax which was also delayed and therefore interest was charged thereon.
Learned counsel for the complainant may therefore respond to the aforesaid allegations made as these are factual controversies which have been made the basis of assailing the impugned order that had gone ex-parte against the appellant.
Let the affidavit be filed within two weeks."
7. In compliance to the above order, the respondent has filed an affidavit dated 08.05.2024 vide IA No. 7593 of 2024. The same has been responded to by the appellant on 03.06.2024. While the complainant/respondent in his affidavit has stated that an amount of Rs.1,64,23,624/-, in total, was paid, additionally he has mentioned an amount of Rs.57,300/-, which does not appear to be part either of the complaint or issue contested in the present appeal. It is further stated that in view of the promise of compensation of Rs.9 lakhs, the sale consideration is only Rs. 1,45,39,000/-. in para 4 of the affidavit, the issue of additional charges of Rs.20,58,216/- has been referred to. However, out of the said amount, only the interest on delayed payment of Sales Tax/VAT is the subject matter of the present appeal. In para 7 of the affidavit it is further urged that the appellant should be made to provide receipts towards the sales tax/VAT paid to the government authorities qua the respondent/complainant's flat. The receipt/adjustment of the delay compensation at the rate of Rs.5 per sq. ft. amounting to Rs.1,73,492/- is admitted, but it is stated that the said compensation is far below such compensations being granted by the Supreme Court. In sum total, it is admitted that an amount of Rs.1,64,23,624/-, and no more, has been paid by the respondent/complainant. In response to the affidavit filed by the appellant, they have enclosed the copies of various letters issued by the appellant including the booking form dated 21.04.2014 and the respondent- complainant's letter dated 30.06.2017. In para 9 of the reply, it has been stated that as per the booking form, duly signed by the original allottee (respondent's daughter), the basic sale price of the unit is agreed at Rs.1,54,39,000/- and other charges of nearly Rs.4 lakhs are also agreed therein. Additionally, vide letters dated 30.06.2014, 27.02.2015 and 31.03.2015, the tax components payable by the allottee is respectively intimated to be Rs.44,150/-, Rs.8,59,217/- and Rs.2,02,590/-, totalling to Rs. 11,05,957/-. Further, in para 9 of the affidavit, referring to clause F9(b) and F(c), of the agreement to sell, certain other additional charges applicable at the time of handover such as BESCOM and BWSSB deposit & charges, BESCOM and BWSSB infrastructure charges, maintenance deposit, contingency fund and legal charges have been mentioned, to which, as averred, the respondent or her daughter did not or could not object. Further in para 11, referring to clauses 3(i), 3(ii), 3(iii) and 3(xiv), it is stated that basic sale consideration to the sum of Rs.1,54,39,000/- and further additional amounts as communicated totalling to Rs. 1,74,97,216/- was payable by the respondent to the appellant, which after deducting the delay compensation of Rs. 1,73,492/- came to net amount of Rs 1,73,23,794/- against which actual amount received is only Rs. 1,64,23,794/- thus duly providing credit for Rs. 9 lacs. The interest charge of Rs. 2,78,728/- has also been duly explained in para 16 of the affidavit.
8. We have carefully considered the material on record and heard the submissions made by the parties. The petition challenges the alleged erroneous basis of findings of overcharging and consequent deficient service. Learned counsel for the appellant firstly pointed out that the service contract stood completed by way of a registered sale-deed as early as 18 months before the letter asking for the refund of Rs. 9 lacs was received. The counsel further stressed upon its first and foremost averment that there is no irregularity regarding the charging of consideration and amounts as wrongly found by the State Commission. It is reiterated that the basic sale consideration of the apartment was Rs. 1,54,39,000/-. Further, there were additional charges amounting to Rs. 18,84,724/- towards other expenses minus an amount of Rs. 1,73,492/- which was adjusted by them as delay compensation, thus totalling to Rs.1,73,23,734/-. After deducting the loyalty bonus of Rs.9,00,000/-, the total payable amount thus came to Rs.1,64,23,724/- and the same was duly paid by the respondent. The State Commission was wrong in holding that the promised amount of Rs.9,00,000/- towards the loyalty bonus was not deducted from the consideration, was thus overcharged and was therefore required to be refunded to the complainant-respondent, because evidently, this amount already stood reduced from the total amount, inclusive of basic sale price plus additional pre-stipulated amounts as per agreement to sell, of Rs. 1,73,23,734/- otherwise chargeable. It is further submitted that no extra amount was paid by the respondent to the appellant and each and every instalment was paid in accordance with the Agreement to Sell signed by the parties. Table giving the breakup of amount payable by the respondents as per the Agreement to Sell, as enclosed in the written arguments, which otherwise is also a part of the earlier communications of the appellant is provided. Similarly, the interest is charged on the delayed payment of the amounts of VAT and Service tax in terms of the agreement to sell at 15%. Thus there is no overcharging at all and therefore the State Commission has grossly erred in awarding the refund of these amounts when being fully satisfied the complainant has also executed the registered deed. As a matter of fact, the prayer made in the complaint was only for direction to the appellant to provide the details or components of the various charges comprised in the amount of Rs. 1,64,23,724/- and not for any refund of any amount. The State Commission has erroneously and overzealously awarded the refunds which were never asked for. Per contra, the counsel for the respondent has strongly supported the order of the State Commission and pointed out that the appellant was ex-parte before the State Commission and therefore no evidence now produced or relied upon by the appellant can be considered.
8.1 We, to begin with, are of the considered opinion that there is merit in the submission on behalf of the appellant regarding absence of proper and effective service of the notice of the complaint. Curiously, the State Commission has considered the service of the notice on appellant's alleged email ID as provided by the complainant, to be sufficient. We are unable to approve this conclusion. First, in our considered opinion, the service of notice by the complainant, that too through an e-mail, on a mail-ID provided by the complainant himself, and not so independently verified, can not be safely considered to be sufficient, particularly so, when the the noticee has not put in appearance. Second, the first notice of the complaint, normally, has to be served by the registry of the Commission through the postal service which, as per the appellant, was not done, and the copy of the complaint was thus never served on the appellant. It is also stated that the complainant did not serve the notice on the e-mail ID on which he regularly communicated with the appellant or on the whatsapp number known to the complainant though the State Commission had so directed. This averment in the appeal by the appellant has not been categorically and effectively controverted. Therefore, we would proceed to decide the appeal on merits after considering all the documents available on record.
8.2 The two issues ie. overcharging of Rs. 9 lacs and the undue charging of interest of Rs. 278728/-on belated payment of VAT and Service Tax, in our considered opinion, are fairly simple and obvious. We, having considered all the material on record, firstly notice that the affidavit dated 08.05.2024 filed by the respondent-complainant, is non-categorical and relatively vague. It also raises unrelated issues therein rather than being sharply focussed on the issues in controversy. However, at the same time, it is crystal clear that the respondent has, in all, not paid more than Rs. 16423724/- as against the duly before-hand communicated total dues of the appellant at Rs/ 17323724/-. On the other hand, the appellant, in response, has filed complete and categorical details of basic sale-price and other charges, duly supported by the contemporaneous e-mail and other communications. We may reproduce the relevant self-explanatory table provided by the appellant in the affidavit co-relating the demands/charges with the respective clauses of the agreement to sell along with those respective clauses in the agreement, as also the matching contemporaneous communication of the appellant dated 27.12.2016:
STATEMENT OF ACCOUNT
| CATEGORY | AMOUNT (in Rs.) | REF: AGREEMENT TO SELL |
| A: Sale consideration | 1.54,39,000 | 2 |
| Additional Charges | ||
| BESCOM & BWSSB deposit | 95,500 | 13(e)(ii) |
| BESCOM & BWSSB infrastructure charge | 1,91,000 | 13(e)(iii) |
| Advance maintenance charge | 80,220 | 13(b) Rs.3.50 x 1910 sq.ft, xl2 months - Rs. 80,220/- |
| Contingency fund (now transferred in the name of the Association formed in the name of the Appellant) | 1,43,250 | 13(c) |
| Legal charges | 75,000 | 13(e)(i) |
| Value Added Tax | 4,49,979 | 24 [Total of Rs. 11,94,518] |
| Service Tax | 7,40,021 | |
| Swachh Bharat Cess (3)0.5% | 2,259 | |
| Krishi Kalyan Cess (a),0.5% | 2,259 | |
| Interest on delayed payment of ST & VAT | 2,78,728 | 8 |
| Delay in handing over possession (deducted from abovementioned charges) | 1,73,492 | 10(c) |
| B- Sum of all additional charges | 18,84,724 | |
| Total amount payable [A~B] | 1.73,23,724 | |
| Loyalty discount [C] | 9,00,000 | |
| Amount after deduction of loyalty discount = A + B - C | 1,64,23,724 | |
8.2 After careful perusal of the table accompanying the appellant's letter dated 07.12.2016 as juxtaposed with the details of payments on 28th and 29th January of 2015, and after considering the totals of valid demands vis-a-vis the amounts actually paid by the respondent, we have no hesitation in holding that the promised amount of loyalty bonus of Rs. 9 lacs is duly reduced by the appellant, and the appellant consequently has received only the due amounts as reduced by Rs. 9 lacs as under:
| B- Sum of all additional charges | 18,84,724 |
| Total amount payable [A+B] | 1,73,23.724 |
| Loyalty discount [C] | 9,00,000 |
| Amount after deduction of loyalty discount = A + B - C | 1,64.23.724 |
9. The appeal stands allowed and the complaint stands dismissed.