BEFORE THE NATIONAL CONSUMER DISPUTES REDRESSAL

COMMISSION, NEW DELHI

IN
APPEAL NO. 384 OF 2013

IN THE MATTER OF:

Neeraj Gill

Appellant
Versus

GTM Builders & Promoters Pvt. Ltd.

Respondent

WRITTEN SUBMISSIONS ON BEHALF OF THE APPELLANT

MOST RESPECTFULLY SHOWETH:
The appellant above-named most respectfully submits as under:
1.

That the Appellant has filed the present Appeal under Section 19 of
the Consumer Protection Act, 1986 against the Order dated
2.4.2013 passed in Complaint No. 43/12 by the State Consumer
Disputes Redressal Commission, New Delhi whereby the State
Commission was pleased to partly allow the complaint of the
appellant herein and further directed the Appellant to pay certain
charges to the respondent for obtaining the possession of the
apartment in question.

2.

That the manifold issues involved in the instant matter for the
consideration of the Honble Forum are outlined hereinunder:

INCREASE/DECREASE IN SALEABLE AREA

A. That it was agreed upon between the appellant and the respondent
as per the terms of the agreement dated 24.06.2006 that the total
saleable area of property in question would be 1959 Sq. Ft. It is
submitted that the Respondent vide its demand letter dated
28.05.2011 raised an additional illegitimate demand of Rs. 9,89,958/on account of an alleged increase in the saleable area to the extent
of _________________ Sq. Ft.
B. It is further submitted that the Builder claimed that purportedly there
was an increase in the saleable area and therefore an additional
amount of Rs. 9,89,958/- was claimed. That computation for
additional amount was based on the calculation of the original
booking amount of Rs. ____________ per sq. ft. multiplied by the
increase in saleable area being __________ sq. ft.
C. That the Appellant claimed in its appeal in para ___ page ____ that
there was a decrease rather than an increase in the actual area as
mentioned in the agreement.
D. That pursuant to the contention raised by the Appellants, this Honble
Court vide order dated 28.11.2013 was pleased to appoint Mr. R.K.
Kakkar, Retd. Chief Architect, CPWD, 357, Bhera Enclave, Paschim
Vihar, Delhi 110 087 as the Local Commissioner to measure the
super area and the saleable area of the subject matter property
purchased by the appellant from the respondent with reference to the
agreements entered into between them, more particularly Clause 5
and 15 of the agreement entered into thereof. In addition to that, the
Local Commissioner was also inter alia directed to report the
condition of each of the flats and whether they are fit for occupation
by the allottees. It is further submitted that as per the aforementioned

order of this Honble Forum, the appointed Local Commissioner

above named carried out the inspection of inter alia premises and
including the property of the Appellant and thereafter filed its report
on 13.01.2014
E. That what has clearly emerged from the Local Commissioners report
who has inspected the site and done actual measurements and used
different situations is that the saleable area has actually decreased
and is even less than 1959 sq. ft. as agreed upon in the agreement
dated 24.06.2006. The total saleable area of the property in question
as per the report of the Local Commissioner varies between 1722.58
Sq. Ft. to 1757.190 sq. ft. Even in the worst case scenario it is much
less than the agreed upon total saleable area of 1959 Sq. Ft.
Therefore the demand of alleged increase in saleable area by 417
sq. ft. is not only absurd but tantamount to cheating and defrauding
the flat owners. Therefore even by yardstick of worst case scenario
the area has decreased by 202 sq. ft. whereas if situation I of the
Local Commissioner report is to be relied upon there is a decrease in
area by 237 Sq. Ft. approximately and the Respondent is thus
entitled for a refund which comes to a total calculated @ Rs. 2347
per Sq. Ft. multiplied by the reduced area i.e. 237 sq. ft. to a total of
Rs. 5,56,239/- alongwith 24% interest from expiry of 30 months from
date of contract i.e. 24.01.2009. (Pg. 3, Report of Local
Commissioner)
CHARGES IN RESPCT OF INTERNAL DEVELOPMENT @ I.D.C.
A. That the Respondent further demanded an additional sum of Rs.
2,37,600/- vide their demand letter dated 28.05.2011 allegedly being
towards Internal Development Charges. (Pg. 105 of Documents)

B. That upon enquiry under RTI dated 20.04.2013 filed with the
Directorate of Town and Country Planning, Haryana as to whether
the Internal Development charges are applicable or paid to the
Department by the BSF Co-operative House Building Society, Gwal
Pahari, Gurgaon (Haryana), Directorate of Town and Country
Planning, Haryana on 01.05.2013, it was replied that the Internal
Development Charges are not applicable and therefore, no IDC
whatsoever has been paid or even applicable in respect of Tower No.
11 in any manner whatsoever. The copy of the RTI reply dated
20.04.2013 is annexed herewith for the perusal of this Honble
Forum and marked as ANNEXURE A-

C. However, the Respondent/Builder has demanded Rs. 2,37,600/which is not even applicable thus showing that the Builder is
intending to defraud and cheat the Appellant and other similarly
placed flat owners.
CHARGES TOWARDS EXTERNAL ELECTRICITY WORK @ E.E.C.
A. That it is pertinent to note that the demand letter dated 28.11.2005
shows the payment towards EEC to be NIL. (Pg. 105, Documents)
whereas the Respondent has asked for EEC charges from other flat
owners (other appellants). It is further to be brought for the kind
consideration of this Honble Court that the Respondent/Builder has
already and wrongly charged and collected EEC charges to the tune
of Rs. 2,15,000/- from the Appellant on 04.10.2010 claiming External
Electrical Work, which was not part of the agreement. However, to
finally take possession of the said property which was delayed by
more than 6 years at that point of time the Appellant agreed without
prejudice and paid an amount of Rs. 2,15,000/- on 11.12.2010. It is

further submitted that at the time of payment of the charges against

External Electricity work, the Respondent extorted the said amount
from the Appellant because the Appellant had no other option but to
make payment towards the said charges so as to peacefully obtain
the possession of the subject matter property. (Pgs. 102 & 103,
Documents)
B. That subsequently the Appellant herein has received information that
under an RTI filed seeking information about the actual EEC charges
paid by the Respondent to the authorities upon which the appellant
obtained knowledge of the fact that the total amount of EEC paid by
the Respondent is only a paltry amount of Rs. ____________ for the
entire building which is holding more than _____ residents. Therefore
if the total EEC is divided by the number of flat owners in the Tower it
comes to a measly amount of Rs. 2,100/- per flat. However, the
builder has misled and cheated the appellant and demanded and
received huge inflated amount of Rs. 2,15,000/-. This amount was
illegally charged by the Respondent and the Respondent is liable for
the refund of the same alongwith interest @ 24% per annum till the
date of payment.
C. That even as per the terms and conditions laid down in the buyers
agreement there was no requirement on part of the Appellant to pay
any EEC amount which was already included in the payments made
towards the purchase of the property.
CHARGES

TOWARDS

DOCUMENTATION/COMPLETION

CERTIFICATE
A. That the Respondent raised demand for additional payment of Rs.
1,50,000

from

the

Appellant

being

payment

towards

documentation/completion certificate vide their demand letter dated

28.05.2011. (Pg. 105, Documents)
B. That the Respondent have deliberately and intentionally concealed
and disclosed for what purpose such an exorbitant amount of Rs.
1,50,000/- is demanded. There is no break-up of what are the
documentation charges and what exactly is being charged. Just
because the Appellant is purchasing a flat does not mean that in the
name of documentation charges any amount can be claimed. The
appellant was and is ready and willing to pay all reasonable
charges towards documentation provided the break-up of the same is
provided. But no payment can be made without explaining and giving
the break-up. It is submitted that the Appellant is the one who is
ready and willing to bear the expense of stamp duty and admittedly
the documentation charges are not the cost of stamp duty. There can
be no way that the expense toward documentation could rise up to
an unreasonable amount of Rs. 1,50,000/-.
PAYMENT TOWARDS INTEREST
A. That the Respondent have raised unreasonable demand of Rs.
1,48,318/- being the amount of interest vide demand letter dated
28.05.2011. (Pg. 105, Documents)
B. That the Respondent has asked for clarification of the said demand,
however,

no

answer

has

been

forthcoming

from

the

Respondent/Builder as what purpose and what period is being

charged for the interest as the Appellant had made the entire
payment at the time of executing the agreement with the
Respondent. It is submitted the Respondent cannot raise demands

without giving any justification/explanation for the same be entitled to

charge any money from the Appellant.
AMOUNT TOWARDS SERVICE TAX
A. That the Respondent also raised demand of additional amount of Rs.
49,154/- from the appellant vide its demand letter dated 28.11.2005
on count of service tax to be given to the Respondent. (Pg. 105,
Documents)
B. That the payment against the service tax is not applicable to the
Appellant in any manner whatsoever in view of the Notice/Circular
No. 108/02/2009-ST dated 29th January, 2009 which clearly states as
under:
The matter has been examined by the Board. Generally, the
initial agreement between the promoters / builders / developers and
the ultimate owner is in the nature of 'agreement to sell'. Such a
case, as per the provisions of the Transfer of Property Act, does not
by itself create any interest in or charge on such property. The
property remains under the ownership of the seller (in the instant
case, the promoters/builders/developers). It is only after the
completion of the construction and full payment of the agreed sum
that a sale deed is executed and only then the ownership of the
property gets transferred to the ultimate owner. Therefore, any
service provided by such seller in connection with the construction
of residential complex till the execution of such sale deed would be
in the nature of 'self-service' and consequently would not attract
service tax. Further, if the ultimate owner enters into a contract for
construction of a residential complex with a promoter/builder
/developer, who himself provides service of design, planning and

construction; and after such construction the ultimate owner

receives such property for his personal use, then such activity
would not be subjected to service tax, because this case would fall
under the exclusion provided in the definition of 'residential
complex'. However, in both these situations, if services of any
person like contractor, designer or a similar service provider are
received, then such a person would be liable to pay service tax. A
typed copy of the said notification dated 29.01.2009 is annexed
herewith and marked as ANNEXURE A -

C. That even assuming for the sake of arguments while denying the
same that any Sales Tax was payable in or after the year 2009, it is
submitted that the same was also not payable by the Appellant since
the Respondent had not given the possession of the said property to
the Appellant which is an admitted and undisputed fact and therefore,
the Appellant is not liable for the payment of any Service Tax
whatsoever.
EARMARKING SPACE FOR PARKING @ STILT PARKING
That the Appellant also paid charges to the tune of Rs. 90,
000/- to the Respondent for earmarking a slot for parking his
car in the form of a stilt parking in the premises of Tower 11
itself. It is submitted that the Respondent has till date not
allotted/assigned/earmarked any parking lot in particular to the
Appellant which has caused tremendous inconvenience for the
Appellant.
PAYMENT IN PURSUANCE OF ORDER OF THIS HONBLE COURT

That the Appellant pursuant to the order dated 28.11.2013 of this Honble
Court paid to the promoter a sum of Rs. 6,00,000/- which was given to
enable the promoters to complete the remaining work in the subject flats
and to expedite/facilitate early delivery of possession of the flats to the flat
owners, which was an ad hoc arrangement and the Respondent is now
liable to pay back the said sum of Rs. 6,00,000/-.
TEN YEARS DELAY IN HANDING OVER POSSESSION OF THE
PROPERTY TO THE APPELLANT
That the Respondent, since the initiation of the construction
activity in respect of the said property took more than 10 years
to deliver the possession of the completed flat to the Appellant
as opposed to the mandatory period of 30 months as stipulated
by the buyers agreement and the Appellant has had to face
hardships on multiple accounts for the same reason. It is
submitted that the Respondent in its own terms and conditions
embodied in the buyers agreement, stipulated an interest of
24% in case of any delayed payments towards the purchase of
the flats by the allottees and therefore, the Respondent may
be put to the same stipulated interest of 24% on the payment
of Rs. 45,08,133/- made by the appellant from 24.01.2009 (i.e.
after

the

expiry

of

30

months

from

date

of

signing

of

agreement) as agreed till the date of handing over actual

possession of apartment and also for allotment/assignment of
the stilt parking slots reserved exclusively for the Appellant.

Amarjit Singh Bedi

Advocate for Accused No. 3
355, Lawyers Chambers,
Patiala House Court, New Delhi

(M) 9818748886
NEW DELHI
DATED: