BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.177 of 2015
Date of institution: 16.04.2015
Date of Decision: 20.04.2016
1. Jitender Mohan Sharma son of late Madan Lal Sharma, resident of Flat No.12-C, Green View Apartments, Lohgarh, Zirakpur, District Mohali (Punjab).
2. Sandeep Sharma son of Jitender Mohan Sharma, House No.664, Sector 16, Faridabad (Haryana).
……..Complainants
Versus
1. Ansal Housing and Construction Ltd., Registered and Head Office at 15 UGF, Indra Prakash, 21 Barakhamba Road, New Delhi through Chairman and Managing Director.
2. The Additional General Manager, Ansal Housing and Construction Ltd., SCO No.34, Mansa Devi Complex, Panchkula (Haryana).
3. The Project Manager, Ansal Housing and Construction Ltd., Zirakpur Site Office, Near PSEB Grid, Nabha Road, Babhat, Zirakpur.
4. The Managing Director/General Manager, Sunrise Estate Manager Service, GF-SR 18, Ansal Plaza, Vaishali, Ghaziabad 201010 (UP).
………. Opposite Parties
Complaint under Section 12 of the
Consumer Protection Act, 1986.
CORAM
Mrs. Madhu. P. Singh, President.
Shri Amrinder Singh Sidhu, Member
Mrs. R.K. Aulakh, Member.
Present: Shri O.P. Sharda, counsel for the complainants.
Shri Pardeep Solath, counsel for the OPs.
(Mrs. Madhu P. Singh, President)
ORDER
The complainant has filed the present complaint through its authorized representative, seeking following direction to the Opposite Parties (for short ‘the OPs’) to:
- pay to the complainants interest @ 21% per annum on the deposited amount of Rs.29,26,857/- for delay in handing over the possession from December, 2009 to April, 2013.
- Refund to the complainants Rs.1,00,000/- charged for stilt car parking.
- Refund to the complainants Rs.1,33,380/- with interest charged for external electrification/fire fighting.
- Refund to the complainants Rs.60,000/- with interest illegally charged as club fee.
- Refund to the complainants Rs.43,875/- with interest charged for interest free security alongwith interest.
- Refund to the complainants Rs.22,565.50 with interest charged by OP No.4 for DG Power Back Up.
- Refund to the complainants Rs.17,061/- charged by the OPs as registration fee.
- Pay interest to the complainants on Rs.2,46,500/- paid to OP No.1 to 3 on 29.05.2012 for registration of the flat whereas the OPs got done the registration of the flat on 04.02.2013.
- Refund to the complainants excess amount charged on account of Common Maintenance charges, capital replacement fund and club maintenance charges.
- Supply to the complainants copy of occupation/completion certificate.
- Remove the deficiencies as mentioned in Para No.32 of the complaint.
- OP No.1 to 3 not to impose maintenance agency i.e. OP No.4 on the complainants.
- Pay to the complainants Rs.5,00,000/- as compensation for harassment, mental torture, hardship etc.
- Pay to the complainants litigation cost of Rs.55,000/-.
The complainant No.1 lured by the advertisements released by OP No.1 contacted its 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, complainant No.1 and his son jointly applied with OP No.2 on 22.09.2007 for booking of 3 BHK flat. As required by the OPs the complainants paid 15% of cost of the flat which was Rs.4,61,000/- along with the booking application. After this vide allotment letter dated 26.12.2007 OP No.1 to 3 allotted Unit No.CEDAT 201, 1755 sq. ft. @ Rs.1,995/- per sq. ft. with basic price of Rs.35,01,225/-. However, after giving down payment discount, inaugural discount and special discount the complainants were required to pay a sum of Rs.30,80,902.50. The complainants were assured by OP No.1 to 3 that possession of the flat would be given to them by December, 2009. As per the payment plan opted by the complainants, till 10.01.2008 they paid a total sum of Rs.29,26,857/- to OP No.1 to 3. OP Nos.1 to 3 issued offer of possession of the flat to the complainants on 07.01.2011 and alongwith the offer, statement showing amount payable by the complainants was also attached. This offer of possession dated 07.01.2011 was not sent to the complainant either by post or by courier but was collected by the complainant on 15.02.2011. The complainant No.1 requested to change the date of issuance of letter but the OPs refused. Thus the complainant received the letter under protest. It was mentioned in letter dated 07.01.2011 that processing of documents for possession and execution of sale deed will start only after receipt of full payment and any delay in making payment will not only delay the process of unit but also attract levy of interest @ 21% per annum compounded quarterly. The complainants made the payment as demanded by the OPs vide cheque dated 08.03.2011 duly received by the OPs. Inspite of clearing all dues as demanded by the OPs, the OPs issued letter dated 25.01.2012 after about 9 months for clearance of dues and execution of sale deed and asking for additional charges for DG Power Back up connection for Rs.22,565.50. This fact is clear that on 07.01.2011 the OPs were not in a position to give the possession to the complainants as the construction work was still in progress. The OP No.1 to 3 vide letter dated 24.11.2007 asked the complainant to pay Rs.1.00 lac if he wanted car parking which the complainant paid. The complainants also vide e-mail dated 13.09.2011 sought details of stamp duty and other charges towards registration of unit followed by another e-mail dated 08.01.2012. On receipt of telephonic message on 19.05.2011 from OP No.1 to 3 the complainants deposited with the OPs a sum of Rs.17,061/- as registration fee. A further sum of Rs.2,46,500/- was also paid by complainants on 29.05.2012 for registration of the flat. Sale deed of the flat was executed in favour of the complainants on 04.02.2013. Despite registration of sale deed, the complainants were given the actual possession of the flat on 18.04.2013. The OPs have also charged Rs.1,33,380/- from the complainant for external electrification/fire fighting which were illegally charged. Despite repeated requests the OPs have not issued occupancy/completion certificate to the complainants. The OPs have also not provided the facilities like badminton court, designer gate, convenient shopping centre, piped gas supply, jogging track, children play area, modular kitchen, provision of fresh potable water, over head water tank etc. etc. The OPs have also charged Rs.60,000/- for club which has been constructed by encroaching upon the area meant for parking of vehicle and the area is very small. An amount of Rs.43,875/- was also illegally obtained by the OPs from the complainant for Interest Free security. On the demand of the OPs the complainant further deposited a sum of Rs.22,565.50 for power back up which is again the contents of the brochure. The OPs have charged a sum of Rs.17,061/- from the complainant as registration fee twice. OP No.4 has charged from the complainants Capital Replacement Fund @ Rs.0.25 per sq. ft. in advance for 6 months before execution of sale deed whereas this fund has not been charged from some purchasers. OP No.4 has also charged club fee @ Rs.600/- per month in advance for 6 months before execution of sale deed. OP No.4 is also indulging in another unfair trade practice by charging Common Maintenance @ Rs.1.50 per sq. ft. from the complainants. As the Ops were not heeding to their requests, the complainants got issued legal notice dated 21.03.2015 to the OPs through registered but the OPs have ignored the same. Thus, with these allegations the complainants have filed the present complaint.
2. The OPs in the preliminary objections of their joint written statement have pleaded that the complaint is barred by limitation as the possession was offered to the complainants on 71.01.2011 which was received by them on 15.01.2011. The complainants themselves delayed the process of receiving actual physical possession by not clearing the outstanding dues. After depositing certain dues on 08.03.2011, the complainants refrained from depositing the other dues regarding which they were informed and reminded through letters dated 02.12.2011 and 25.01.2012. The complainant entered into agreement with the OPs and the terms and conditions of the agreement were got made available to the complainant three times i.e. first at the time of provisional allotment on 22.09.2007, second at the time of allotment on 26.12.2007 and thirdly certain terms were incorporated in the sale deed at the time of registration on 18.04.2013. No emails dated 28.03.2013 and 14.07.2011 were received by the OPs from the complainants. The complainants have also misstated about the email to the OPs regarding covered car parking. The complainants never raised any protest against the car parking charges. The complainants were under bounden duty to deposit the remaining amounts i.e. the last installment and other allied charges as mentioned in the allotment letter as well as in the offer of possession. This Forum does not have jurisdiction to entertain, try and adjudicate the complaint because the dispute raised by the complainant relates to interest and compensation. The complainants are not consumers as they booked the flat for investment/commercial purpose. There is no relationship between the complainants and the OPs as the sale deed of Unit No.201 CEDAR has already been conveyed and the property now completely b vests with the complainants. The complainants were never forced for payment of any charges. The complaint involved complicated question of facts and law as such the present complaint can be decided by the civil court only.
On merits, the OPs have pleaded that the OPs have never promised to deliver the possession of the flat by December, 2009. The possession was offered on 07.01.2011 whereafter the complainants themselves delayed in making certain payment. The complainants are trying to maneuver and twist the facts to suit his own story. External electrification charges have been levied based on actual expenditure incurred on providing this service in the complex as per approval accorded by respective State Sanctioning Authorities. Process for issuance of completion certificate is underway as the MC, Zirakpur has forwarded its approval of all documents submitted by the OPs and requested the Director, Town Planning Punjab to issue completion certificate. Nothing beyond the charges mentioned in the agreement has been charged from the complainant. The club has been constructed as per sanctioned plan approved by the authorities. The complainants are not entitled to seek interest on the amount deposited as Interest Free Maintenance Security. DG Power Back up charges are one time installation and equipment costs which are levied for installation of DG power back up equipment. The maintenance charges have been made as per the expenses incurred on various services given by the maintenance agency which has been appointed as per Clause 28 of the allotment letter. Capital Replacement Fund is charged from the occupants to create the corpus of fund for replacement/major repair of the capital assets of the building. The rate of capital replacement fund is worked out based on the estimated working life of the capital assets/equipments/machinery. There is no illegality in lying common maintenance charges on the basis of area of the unit. The service charges have been charged as per the flat buyers agreement and instructions issued by the Govt. of Punjab from time to time. Denying any deficiency in service or unfair trade practice on their part, the OPs have sought dismissal of the complaint.
3. Evidence of the complainants consist of affidavits of complainant No.1 Ex.CW-1/1 and Ex.CW-1/2; affidavit of complainant No.2 Ex.CW-2/1; copies of documents Ex.C-1 to C-32.
4. Evidence of the OPs consists of affidavit of Manav Ujla, their Dy. Manager (Legal) Ex.OP-1/1 and copies of documents Ex.OP-1 to OP-6.
5. We have heard learned counsel for the parties and gone through the written arguments filed by them.
6. It is admitted case of both the parties that the complainants were jointly allotted 3 BHK flat in question vide allotment letter dated 26.12.2007 Ex.OP-1/3 with the total sale price of Rs.30,80,902.05, alongwith duly signed terms and conditions of allotment. As per allotment letter the complainants have paid all the sums and got the sale deed executed vide sale deed 04.02.2013 Ex.C-31 and the complainants are in possession of the property since then. Now after getting the possession and execution of sale deed, the complainants have raised a consumer dispute which is by and large relates to settlement of accounts besides some defects and deficiencies in the flat in question and non supply of completion certificate.
7. In order to prove the issues relating to settlement of accounts i.e. point (a) to (h) of Para No.1 of this order, the complainants have relied on the terms of allotment letter. The perusal of terms of allotment letter do not support the contentions of the complainants as no where the complainants have been given the right to charge interest on deposited amount on account of sale consideration, stilt parking, internal electrification, club charges, interest free security amount, power back, registration fee etc. The issue, therefore, being simply settlement of accounts does not fall under the purview of the consumer dispute as it is a business to business dispute as has been held by the Hon’ble National Commission in Milan Barot & Ors. Vs. Mukesh Hardiat Bhatt & Anr. III (2011 CPJ 141 (NC).
8. So far the grievance of defects and deficiencies in the flat in question is concerned, the complainants have heavily relied on his bare pleas without leading any cogent evidence. It is settled law that once the complainants have taken the possession and executed the sale deed without any pre condition, now after getting the possession it does not lie in the mouth of the complainants to state that the flat is not in a habitable condition or suffers from defects and deficiencies and particularly without leading any evidence to this effect. Therefore, the grievances of the complainant on this account are not maintainable.
9. So far as non supply of completion certificate is concerned, the OPs themselves have admitted in Para No.31 of their reply that the completion certificate is not available with them and they have initiated the process for issuance of completion certificate with the Municipal Council, Zirakpur and the M.C. Zirakpur has already taken up the matter with Director Town Planning vide letter dated 10.01.2014 Ex.OP-5. On the other hand the complainants have relied upon an RTI response Ex.C-31 dated 16.06.2015 from M.C. Zirakpur that the completion certificate issue is under consideration with the Govt., no sewerage and water connection has been released to the OPs, occupation certificate has not been released in favour of the OPs. Thus, it is ample clear that when the complainants have got the possession of the property on 04.02.2013 the OPs were not having completion certificate, occupancy certificate and water and sewerage connection in their favour from the competent authorities. Thus, the offer of possession and subsequent execution of sale deed without having occupation certificate, completion certificate and sewerage and water connection in favour of the OPs, is an act of unfair trade practice which has been amply proved by the complainants from Ex.C-31. Thus, the complaint deserves to be partly allowed on this account and the complainants deserve to be compensated.
10. In view of above discussions, the complaint is partly allowed with the following directions to the OPs to:
(a) to provide to the complainants the completion certificate, and occupancy certificate within a period of two months from the date of receipt of a certified copy of this order.
(b) to pay to the complainants lump sum compensation of Rs.50,000/- (Rs. Fifty thousand only) for mental agony, harassment and costs of litigation within a period of one month from the date of receipt of a certified copy of this order.
Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the file be consigned to the record room.
Pronounced.
April 20, 2016.
(Mrs. Madhu P. Singh)
President
(Amrinder Singh Sidhu)
Member
(Mrs. R.K. Aulakh)
Member
