DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)

                                  Consumer Complaint No.87 of 2015

                                                Date of institution:  25.02.2015                                                 Date of decision   :  29.08.2016

Wing Commander Siddharth Maurya, Air Force Police Headquarter, Upper Shillong, Nonglyer Post, Shillong.

……..Complainant

Versus

1.     Ansal Housing and Construction Ltd., Registered and Head Office at 15 UGF, Indra Prakash, 21 Barakhamba Road, New Delhi through its Chairman and Managing Director.

2.     Ansal Housing and Construction Ltd., SCO No.34, Sector-5 Mansa Devi Complex, Panchkula (Haryana) through its Additional General Manager.

3.     Ansal Housing and Construction Ltd., Zirakpur Site Office, Near PSEB Grid, Nabha Road, Babhat, Zirakpur through its Project Manager.

4.     Sunrise Estate Management Services, GF-SR 18, Ansal Plaza, Vaishali, Ghaziabad 201010 (UP) through its Director/Manager.

                                                     ………. Opposite Parties

Complaint under Sections 12 to 14

of the Consumer Protection Act

Quorum

Sh. Ajit Pal Singh Rajput, President  

Sh. Amrinder Singh Sidhu, Member

Mrs. R.K. Aulakh, Member.

Present:    Shri O.P. Sharda, counsel for the complainant.

                Shri Pardeep Solath, counsel for the OPs.

ORDER

By Ajit Pal Singh Rajput, President

                Complainant, Wing Commander Siddharth Maurya, Air Force Police Headquarter, Upper Shillong, Nonglyer Post, Shillong, has filed this complaint against the Opposite Parties (hereinafter referred to as the OPs) under Sections 12 to 14 of the Consumer Protection Act (hereinafter referred to as the Act). The brief facts of the complaint are as under:

                The complainant lured by the advertisements released by OP No.1 to 3, contacted their office for booking of a flat in the ‘Ansals Woodbury Apartments, Zirakpur’.  The complainant was given brochure wherein the details of the project like its layout plan, facilities to be provided were mentioned.  OP No.1 to 3 in the brochure had promised to provide water bodies, park, jogging park, pavilion, gazebo, badminton court, fire fighting arrangements, piped gas supply, designer gate, intercom facility within the complex including the security gate, rain water harvesting  and power back up etc.

 Accordingly, the complainant booked 2 BHK Flat No.ELM 303, Woodbury Apartment, Zirakpur with the OPs on 15.03.2008. At the time of booking, the representatives of the OPs assured the complainant that the apartment/flat would be fully ready and possession would be handed over to him by November/December, 2009.  On the advice of the officials of the OPs, the complainant opted for Down Payment Plan and paid 95% of the cost of the apartment/flat i.e. Rs.23,73,291/- upto 24.05.2008. Remaining 5% of the cost of the apartment and other payments total being Rs.1,80,780/- were also paid by the complainant to the OPs vide cheque dated 15.10.2012.  The complainant made these payments after obtaining loan of Rs.15.00 lacs from Air Force Group Insurance Society, New Delhi. The complainant was required to furnish the ‘Possession Certificate’ and ‘Conveyance Deed/Sale Deed’ to the aforesaid Group Insurance Society within 18 months of disbursement of loan amount failing which rate of interest of the loan was to be hiked by 2% on the entire loan amount as a penalty.  In response to his e-mail dated 21.04.2015, the OPs vide letter dated 31.07.2010 informed him that they would be able to send the offer of possession to the complainant by the end of December 2010.  As the possession was not handed over to him by December, 2010, the complainant vide e-mail dated 08.01.2011 asked the OPs about the date of handing over possession as he was to supply the required documents to the aforesaid Group Insurance Society.  Even the complainant also received letter dated 03.03.2011 from the Insurance Society in this regard. The complainant again vide his letter dated 16.08.2011 informed the OPs about receipt of letter dated 03.03.2011 from the Insurance Society for supply of documents. The complainant also informed the Insurance society vide his letter dated 16.08.2011 the reasons due to which he was unable to furnish the required documents. The complainant again sent e-mail dated 03.10.2011 to the OPs for intimating him the exact date by which the possession of the apartment/flat would be handed over to him in order to enable him to inform the Insurance Society.  The OPs vide letter dated 04.10.2011 informed the complainant that they would be able to send the Offer of Possession tentatively by January, 2012. The complainant accordingly informed the Insurance Society vide his letter dated 07.10.2011 about the tentative date of delivery of possession of the apartment/flat in January, 2012.  The letter of possession was dispatched by the OPs to the complainant on 12.09.2012 which was received by him on 23.09.2012.  However, on visiting the site, the complainant found that the apartment/flat was not ready for possession. The complainant had already paid the required payment of the apartment/flat in 2008. The other dues like security deposits, software meter installations etc.. to the tune of Rs.63,688/-was also paid by the complainant to the OP No.4 on 31.12.2012.  The complainant also made payment of Rs.24,596/- vide receipt dated 11.01.2013 to OP No.4 for cheque return charges, common maintenance charges etc. etc. The complainant vide letter dated 14.02.2013 asked the OPs to inform him about the date of handing over the possession of the apartment/flat.

Ultimately, the actual/physical possession of the flat was handed over to the complainant on 27.02.2013 with long delay of 26 months.  Due to late delivery in possession, the complainant deserves to be compensated equal to the rental value of the apartment/flat. The complainant also deserves interest on the amount of Rs.23,73,291/-  which remained with the OPs for more than 5 years. The complainant is entitled to refund of Rs.92,796/- which the OPs have charged for External Electrification whereas these charges were included in the cost of the apartment/flat. Amount of Rs.14,652/- towards labour cess charges are to be refunded to the complainant as the same was to be paid by the builder and not by the buyer. The OPs have also charged service tax to the tune of Rs.12,945/- whereas no service has been provided to the complainant by the OPs and these charges are to be refunded to the complainant. The amount of Rs.8696/- towards Capital Replacement Fund has been charged wrongly by OP No.4 which needs to be refunded to the complainant.  The OPs had received Rs.1,00,000/- from the complainant towards car parking which they cannot charge and this amount needs to be refunded to the complainant alongwith interest. An amount of Rs.61,050/- had been received from the complainant towards Preferential Location Charges @ 50 per sq. ft. for parking facing apartment but there was no park facing the apartment of the flat. Hence this amount had been wrongly received by the OPs from the complainant. An amount of Rs.60,000/- was charged by the OPs from the complainant as mandatory club membership but the building of the club is very small building that too by cutting into the parking area. The Ops are also charging Rs.300/- per month as monthly club maintenance charges from each apartment/flat owner. OP No.4 had also charged Interest Free Security Deposit from the owners of the apartments by not paying interest thereon. Even OP No.1 to 3 had not obtained the mandatory occupation/completion certificate from the authorities concerned.  In the offered flat, the flooring work, wood work in kitchen and other places and sanitary work  got done by the OPs are of inferior/poor quality. The plaster on the outside walls of the building is peeling off which shows poor quality of construction material.  The complainant had also pointed out various deficiencies in the facilities as promised by the OPs in para No.35 of the complaint.  The complainant was also not liable to pay a sum of Rs.16,679.80 for D.G. Set of power back which as per allotment letter was to be provided by OP No.3. The amount of other components had also been paid by the complainant vide receipt dated 31.12.2012. The act and conduct of the OPs shows clear cut unfair trade practice and deficiency in service on their part. Hence this complaint for giving directions to the Ops to;

(a)    Compensate him equal to the rental value of the apartment for the period of delay in possession.

(b)    Compensate for the loss of interest on Rs.23,73,291/- which remained with the OPs for around four years.

(c)    Compensate him for paying 15 visits to the office of the OPs.

(d)    Refund him Rs.92,796/- charged towards External Electrification.

(e)    Refund him Rs.14,652/- alongwith interest charged by the OPs towards Labour Cess Charges.

(f)     Refund him Rs.12,945/- illegally charged as ‘service tax’.

(g)    Refund him Rs.8,696/- illegally charged as ‘Capital Replacement Fund.

(h)    Refund him Rs.1,00,000/- illegally charged for car parking.

(i)     Refund him Rs.61,050/- illegally charged as ‘preferential location charges’.

(j)     Refund him proportionate of excess amount of Rs.60,000/- with interest illegally charged for club building.

(k)    OP No.4 not to charge maintenance charges or in the alternative ‘Interest Free Security Deposit” interest be refunded.

(l)     Refund him Rs.16,689.80/- illegally charged as ‘for D.G.’.

(m)   OPs to obtain mandatory occupation/completion certificate from the concerned authorities.

(n)    Remove the deficiencies in construction as mentioned in Para No.34 and 35 of the complaint.

(o)    Not to charge maintenance and club fee till the project/club is completed.

(p)    To take back the unwarranted power back up related charges and restore the power back up connection.

(q)    Pay him compensation for harassment, mental torture, hardship etc.

(r)    Pay him Rs.55,000/- as costs of litigation charges.

2.             The complaint is contested by the OPs by filing joint written reply, in which they raised certain preliminary objections, inter alia, that the complaint is barred by limitation as the possession was offered to the complainant on 12.09.2012 which was received by him on 23.09.2012. Hence the cause of action, if any, had arisen on 23.09.2012 but the complaint has been filed on 26.02.2015 after more than two years of statutory period.  This Forum does not have the jurisdiction to entertain, try and adjudicate the complaint because the dispute raised by the complainant relates to interest and compensation which cannot be adjudicated upon by the District Forum.  In view of the arbitration clause in the allotment letter, the consumer complaint is not maintainable. Sale deed of the flat had already been executed and the property now completely vests with the complainant. The possession letter dated 27.02.2013 shows that the complainant had accepted the flat with free will without any coercion. The complainant is also not a consumer as he had booked the flat for investment/commercial purposes. The complainant was never forced for payment of any charges. The complainant has got no locus standi and cause of action to file the complaint. The complaint involves complicated question of facts and law, hence the present complaint can be decided by the Civil Court only.  On merits, the OPs have pleaded that 95% cost of the flat was made by the complainant in 2008 and 5% payment was made by him on 15.10.2012 after receipt of offer of possession of the flat on 12.09.2012.  The OPs have never promised to deliver the flat in December, 2010. Rather it was specifically informed that the flat would be ready for possession tentatively in the end of December, 2010 barring unforeseen circumstances. The offer of possession was issued after completing all the necessary facilities. The charges agreed between the parties in the flat buyer agreement have been charged from the complainant and nothing beyond that has been charged. The complainant did not come forward to take possession of the flat immediately after 12.09.2012.  The labour cess charges, service charges etc. have been applied as per the flat buyer agreement and the instructions issued by the Govt. of Punjab.  The OPs are entitled to charge for covered car parking space. The amount of Rs.61,050/- for PLC has already been refunded and credited in the account of the complainant. The club building and gym were constructed as per approved building map and charges agreed between the parties had been charged. The maintenance charges had been charged as per the expenses incurred on various services given by the maintenance agency.  Some of the necessary permissions and certificates from concerned authorities had already been contained as per law and some are in process. The apartments have been constructed with best quality material and superior craftsmanship. Denying any deficiency in service or unfair trade practice on their part, the OPs have sought dismissal of the complaint.

3.             In order to prove the case the complainant tendered in evidence his affidavits Ex.CW-1/1; Ex.CW-1/2 and Ex.CW-1/3; affidavit of complainant No.2 Ex.CW-2/1; copies of documents brochure Ex.C-1; payment schedule Ex.C-2; receipt Ex.C-3; allotment letter Ex.C-4; receipts Ex.C-5 to C-8; letter dated 31.07.2009 Ex.C-9; e-mail dated 21.04.2010, 08.01.2011 Ex.C-10 & C-11;  receipt dated 03.03.2011 Ex.C-12; registered letter dated 16.08.2011 Ex.C-13; HBL documents dated 16.08.2011 Ex.C-14; e-mail dated 03.10.2011 Ex.C-15; letters dated 04.10.2011, 07.10.2011 and 12.09.2012 Ex.C-16 to C-18; receipts dated 31.12.2012, 11.01.2013 Ex.C-19 and C-20; letters dated 14.02.2013 and 27.02.2013 Ex.C-21 and C-22; e-mail dated 24.02.2015 Ex.C-23; newspaper cuttings Ex.C-24 and C-25; letter dated 16.06.2015 Ex.C-26; letter dated 30.07.2007 Ex.C-27. In rebuttal the OPs tendered in evidence affidavit of affidavit of Manav Ujla, their Dy. Manager (Legal) Ex.OP-1/1; copies of resolution Ex.OP-1; letter dated 10.01.2014 Ex.OP-2; labour cess payment receipt Ex.OP-3; original sanctioned plan Ex.OP-4 and possession letters Ex.OP-5.

5.             We have heard learned counsel for the parties and gone through the evidence, written arguments aswell as oral submissions.

6.             At the very outset, learned counsel for the OPs has submitted that the complainant is not a consumer. In this regard, he has relied upon the latest decision of the Hon’ble National Commission in case titled as; Harpal Arya Vs. Housing Board, Haryana, Revision Petition No.3338 of 2007, decided on 04.01.2016. Learned counsel for the OPs has made a submission that before proceeding to decide the complaint on merits, the issue with regard to the complainant being a consumer may be decided first. On the other hand, learned counsel for the complainant has objected to the submissions of learned counsel for the Ops and stated that the present complaint deserves to be decided on merits as the complainant is a consumer of the OPs. He has relied upon the case titled as;  Hajra Hashim Deriya & Others Vs. Cordcon Builders Pvt. Ltd. & Others, 2015 (3) CLT 144 (Hon’ble Maharashtra State Consumer Disputes Redressal Commission);  Matiur Rahaman & Ors. Vs. Jahanara Begum & Anr. 2008 (3) CPC 449; Abha Sinho  & others Vs. M/s. Ansal Buildwell Ltd. 2014(3) CPC 350, Kay Jay Construction Co. Pvt. Ltd. Vs. Daulat Alwani, 2016(2) CLT 517; Developers Township Property Owners Welfare Society Vs. Jai Parkash Associates Limited, Consumer Case No.1479 of 2015 decided on 02.05.2016  (Hon’ble National Commission); Shivalik Vihar Sites Pvt. Ltd. & Ors. Vs. Darshan Singh, 2013(1) CPC (Hon’ble Supreme Court of India).  

7.             We have gone through the aforesaid decisions relied upon by the counsel for the complainant.   Although the decisions of the Hon’ble National Commission in case titled as; Kay Jay Construction Co. Pvt. Ltd. Vs. Daulat Alwani, (Supra) and Developers Township Property Owners Welfare Society Vs. Jai Parkash Associates Limited, (supra), wherein it is stated in para No. 37(1) “It was stated by the counsel for the OP at Bar that they would send offers of possession of allotment within three months from 22.04.2016.  There is already huge delay.  We accept the offer made on behalf of the OP and direct the OP to handover the possession of the premises in dispute within three months from 22.04.2016 to 21.07.2016, otherwise, it will pay penalty in the sum of Rs.5,000/- per flat / per allottee/allottees, per day, till the  needful is done;” .

8.             The aforesaid case law are the latest decisions than the decision  of case titled as Harpal Arya Vs. Housing Board, Haryana (supra) of the Hon’ble National Commission. However, in both the decisions the OPs were yet to deliver the possession to the complainants. Thus the Hon’ble National Commission allowed theses cases in favour of the complainants. In our opinion the facts of these cases are distinguishable from the facts of the present complaint.  However, the facts of the present complaint are squarely covered by the decision of the Hon’ble National Commission in case titled as Harpal Arya Vs. Housing Board, Haryana (supra) wherein it has been observed in Para No.15 as under:

“Thus, from the aforesaid documents, it is manifestly clear that petitioner had executed the Hire Purchase Tenancy Agreement with the respondent and in pursuance thereof, he had also taken possession of house on 27.10.2004. Further as per possession certificate, it is clear, that petitioner had taken the possession, without any pre conditions. Now after getting the possession, it does not lie in the mouth of the petitioner to state that house is not in a habitable condition.  Once petitioner, had taken the possession with open eyes and without any pre-conditions, he cease to be a consumer. The consumer complaint was filed on 25.05.2005, that is, after about seven months of taking over the possession of the house. Therefore, on the face of it petitioner was not a ‘consumer’ at the time of filing of the complaint, since there was no privity of contract between the parties. Therefore, complaint is liable to be dismissed on this ground alone.”

                Learned counsel for the complainant has not been able to produce any case law contrary to the aforesaid decision of the Hon’ble National Commission.

8.             In the present case also the complainant had taken over the possession on 27.02.2013 without any pre-conditions and had filed the present case after a period of more than 2 years from the date of taking the possession. Hence the complainant ceases to be a consumer, in view of the observations of the Hon’ble National Commission in case titled as Harpal Arya Vs. Housing Board, Haryana (supra).

9.             Accordingly, in view of our aforesaid discussion, we do not find it appropriate to adjudicate the present complaint on merits.  However,  the complainant is granted the liberty to approach the appropriate  Court of law/tribunal/authority and may be entitled to the benefit of the observations of the Supreme Court in Laxmi Engineering Works v. P.S.G. Industrial Institute II(1995) CPJ 1 (SC) : 1995 3 SCC 583, for the purpose of exclusion of time spent before this Forum. The present complaint is hereby dismissed, in view of our aforementioned observation. In case the complainant requires any documents the same be returned, under receipt and a copy of the same be retained. Parties to bear the cost. 

                The arguments on the complaint were heard on 03.08.2016 and the order was reserved. Now the order be communicated to the parties. Copy of the order be sent to the parties free of cost and thereafter the file be consigned to the record room.

Pronounced

Dated:29.08.2016     

                                          (A.P.S.Rajput)                  

                                                                       President

               (Amrinder Singh Sidhu)

Member

  (Mrs. R.K. Aulakh)

                  Member