BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAS NAGAR, MOHALI
Consumer Complaint No.516 of 2014
Date of institution: 19.08.2014
Date of Decision: 22.04.2015
Nitin Kalia son of Sat Narain Kalia, resident of 2754, Sector 40-C, Chandigarh.
……..Complainant
Versus
1. Ansal Housing and Construction Ltd. Registered and Head Office at 15 UGF, Bara Khamba Road, New Delhi through its Chairman and Managing Director.
2. Ansal Housing and Construction Ltd., SCO No.34, Sector 5, Mansa Devi Complex 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-SR18, Ansal Plaza, Vaishali, Ghaziabad, UP 201010 through its Director/Manager.
5. Sunrise Estate Management Services, Woodsbury Apartments, Bhabat, Zirakpur through its authorized representative.
………. Opposite Parties
Complaint under Section 12 of the
Consumer Protection Act, 1986.
CORAM
Mrs. Madhu. P. Singh, President.
Mrs. Sonia Bansal, Member.
Present: Shri O.P. Sharda, counsel for the complainant.
Shri Suneet Pal, counsel for the OPs.
(Mrs. Madhu P. Singh, President)
ORDER
The complainant has filed the present complaint under Sections 11 and 12 of the Consumer Protection Act, 1986 for issuance of following directions to the Opposite Parties (for short ‘the OPs’) to:
(a) revert back the maintenance charges to Rs.1/- per sq. ft. per month instead of Rs.2/- and to waive off the capital replacement fund forever
(b) not to charge for maintenance and club fee till the project/club is complete in all respects.
(c) complete the deficiencies in the work.
(d) take back the unwarranted power back related charges and restore the power back up connection.
(e) pay Rs.10,00,000/- for damages, mental tension, agony and torture alongwith costs of litigation to the tune of Rs.20,000/- with interest @ 18% per annum.
(f) pay interest on account of delayed offer of possession and to pay interest on possession amount which the OPs have charged one year before it was due.
The complainant has alleged that as a co-owner with his father he has booked 3 bed room flat No. Cedar 102 having 1755 sq. ft. super area @ Rs.1995/- per sq. ft. for a sale consideration of Rs.35,01,225/- on 09.09.2007. At that time the OPs in the brochure made promises like that of water bodies, park, jogging park, entrance to pavilion, gazebo, badminton court etc. Apart from these, the OPs also assured to provide fire fighting arrangements, pipes gas supply, separate servant toilet with 3 bedroom apartments, intercom facility within the complex including security gate, rain water harvesting, power back up of 3 KVA for 2 Bedroom and 5 KVA for 3 Bedroom etc. The complainant paid a sum of Rs.5,25,184/- i.e. 15% of the cost of the flat at the time of booking on 16.09.2007. Thereafter, allotment letter dated 02.10.2007 was issued by the OPs. The OPs assured to deliver the possession by January, 2009 but actually the possession has been delivered in 2012. The complainant opted for construction linked plan but full payment of the flat was made by the complainant by March, 2009 for which the OPs gave discount of Rs.46,000/- to the complainant. Alongwith the final payment, the complainant also paid the club membership and covered car parking charges vide receipt dated 19.03.2009. The OPs issued letter of offer of possession on 07.01.2011 mentioning therein that the flat is at pre possession stage and physical possession would be handed over subject to clearing all outstanding dues and after execution of the sale deed. The OPs also demanded Rs.1,33,380/- towards external electrification charges and interest free maintenance security (IFMS) @ Rs.25/- per sq. ft. amounting to Rs.43,875/-. Also there was a note at the bottom of that common maintenance charges @ Rs.1/- per sq. ft. per month and capital replacement fund @ Rs.0l.25 per sq. ft. per month shall be payable in advance for six months at the time of obtaining NOC for registry/CAM agreement from SEMS whereas the OPs are not claiming these charges from the complainant. The complainant made payment of charges towards external electrification charges and service tax on PLC vide cheque dated 14.03.2011. Letter of offer of possession was issued by the OPs on 25.01.2012 and it was also intimated that the maintenance charges have been revised from Rs.1.25 per sq. ft. to Rs.2.25 per sq. ft. The complainant vide letter dated 16.02.2012 asked the OPs to deliver the possession. The OPs vide letter dated 05.06.2012 demanded an amount of Rs.36,885.50 from the complainant towards unpaid basic cost whereas all the dues were duly paid. An amount of Rs.12,455.25 has also been showed unpaid towards external electrification charges which was already paid by the complainant vide Ex.C-8. The complainant paid all the charges including IFMS @ Rs.25/- per sq. ft. vide receipt dated 18.08.2012. The sale deed of the flat was executed on 30.08.2012. To cover the delay of the project, the OPs changed the procedure of possession and sale deed as per Clause 23 and 24 as per which the offer of possession would be sent after the flat would be ready for possession. Actual physical possession of the flat was handed over to the complainant on 14.09.2012 after a gap of 3 years of promised and actual date of delivery of possession. Even at the time of possession, the flat was not in inhabitable condition and lacked facilities that of proper fire fighting system, poor quality wood work etc. As per statement of account the bill for the period from 01.08.2012 to 31.12.2012 was Rs.13,163/- which on division comes to Rs.1.50 per sq. ft. contrary to the agreed charges of Rs.1/- per sq. ft. Thus the OPs have over charged maintenance charges. Father of the complainant also sent e-mail to the OPs for the problems being faced due to increase in maintenance charges. The complainant alongwith his father went to the site on 30.08.2012 for taking possession which was refused and then e-mail dated 15.09.2012 was sent by the complainant. Father of the complainant sent e-mail dated 23.06.2013 to the OPs demanding the accounts of the money collected by the OPs for club membership, auto power supply etc. and the OPs did not pay any attention to it. OP No.4 vide letter dated 23.08.2013 waived off the capital replacement fund which shows that the OPs have charged this amount without any plausible reason. The complainant has mentioned various defects in Para No.27 of the complaint. Thus, the OPs have exhibited gross negligence in performance of their duties as they have over charged the maintenance charges, not properly maintained the club though they are charging club fee, no proper power back up facility though they are charging for the power back up facility and there are deficiencies in the construction work of the flat in question. Therefore, the complainant has suffered huge loss and the OPs have failed to redress his grievance despite agitating the same before the OPs vide various e-mails. Therefore, he was left with no other option but to file the present complaint.
2. After admission of the complaint, the notice was issued to the OPs, who put in their appearance through their counsel and filed the detailed written reply.
3. The OPs in the written reply have taken following preliminary objections:
(a) that the complainant is not a consumer as the flat in question has been booked for commercial purpose as the complainant has already a residential flat where he is residing since long.
(b) that the complaint is barred by limitation
(c) that this Forum does not have the territorial jurisdiction as well as pecuniary jurisdiction to adjudicate upon the complaint.
(d) that the complainant has also concealed material facts from this Forum.
Besides above preliminary objections, it is pleaded that all the promised facilities have been provided and functional and are being used by the residents of the society. No PLC was charged from the complainant and the complainant paid Rs.35,01,225/- towards cost of the flat. The offer of possession was sent as per the plan. The OPs gave the benefit of Rs.46,800/- to the complainant despite the complainant having opted for construction linked plan. The club is in working condition and the residents are enjoining the facilities alongwith swimming pool. Pre-possession offer Ex.C-7 was issued by the OPs. The rates were calculated considering the cost of maintenance at that time and under compelling circumstances these were revised which was communicated to the complainant. As per Ex.C-10 the complainant himself sought time to get the sale deed executed. It is no where mentioned in Ex.C-4 and C-5 that all the dues are cleared. The OPs have denied that they have changed the procedure of possession. The flat in question was being used as sample flat with the permission of the complainant and was handed over to him on his demand on 14.09.2012 in intact and perfect condition. The money collected by the agency is necessary to maintain the group housing society and quality of service cannot be compromised. 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. Since the building is new it is decided by the OPs that initially CRF collection should be deferred till reasonable period. All the facilities and devices are in working condition. The material used is of high quality and as per the standards. The maintenance agreement is duly read and understood at the time of application for allotment of the flat. Thus, denying any deficiency in service on their part, the OPs have sought dismissal of complaint.
4. To succeed in the complaint, the complainant proved on record his affidavit Ex.CW-1/1 and tendered in evidence documents Ex.C-1 to C-26.
5. In order to rebut the complaint, the OPs have tendered the affidavit of Mintu Kumar their authorized representative Ex.OP-1/1 and no other document is tendered in evidence.
6. We have heard learned counsel for the parties and have carefully gone through the evidence produced and written arguments by them.
7. Before we consider the complaint on merits, it will be appropriate to deal with the preliminary objections. The first objection is that the complainant is not a consumer. In this regard, the OPs raised an objection that the complainant has applied as co-applicant with his father for the flat in question for commercial purposes as the complainant is already having residential flat in Chandigarh where he is residing since long. In order to support his contention, the OPs have relied upon the judgment of Hon’ble National Commission in Complaint No.270 of 2013 Madhu Sehgal Vs. Omaxe Ltd. decided on 20.03.2014. We have gone through the said judgment and found that the facts are different as in Madhu Sehgal (supra) case two apartments were purchased by the same person one in his own name and another in the name of his wife whereas in the present case the complainant is co-applicant with his father and is residing in his own house in Chandigarh in no manner can be construed as purchase of flat for commercial purpose. Since the complainant has made all the payment of the agreed consideration to the OPs and also got the possession, he as a consumer under Section 2 (1) (d) of the Consumer Protection Act has the right to agitate his grievance before this Forum.
8. The second point is regarding limitation. Admittedly the complainant is in possession of the property since 14.09.2012 Ex.C-14 and he has filed the present complaint in August, 2014. Thus, his complaint is within limitation as prescribed under Section 24-A of the Consumer Protection Act.
9. Regarding territorial jurisdiction, the perusal of array of parties clearly shows that the site office of the OPs i.e. OP No.3 is situated within the territorial jurisdiction of this Forum and further the property in question is also situated within the territorial jurisdiction of this Forum. The sale deed qua the property has also been executed at Dera Bassi. Therefore, this Forum has the territorial jurisdiction to entertain and adjudicate the complaint and the objection of the OPs is ill founded.
10. Regarding pecuniary jurisdiction, the perusal of prayer clause shows that the sum claimed is less than Rs.20.00 lacs and, therefore, this Forum has the pecuniary jurisdiction.
11. Admittedly the complainant has got 3 bed rooms flat No. Cedar 102 having 1755 sq. ft. super area @ Rs.1995/- per sq. ft. for a sale consideration of Rs.35,01,225/- on 09.09.2007. Admittedly the complainant has made all the payments by March, 2009 and is in the possession of the flat in question since 14.09.2012 Ex.C-14. The grievance of the complainant is that he has been handed over the possession of the flat in question beyond the agreed period of possession as per terms of allotment Ex.C-2. The relevant portion of clause 22 governing the terms of possession is reproduced here below:
“The developer shall endeavor to give possession of the unit to the allottee (s) within a reasonable time from the date of execution of allotment letter subject to force majeure circumstances such as act of God, fire, earthquake, flood, civil commotion, ward, riot, explosion, terrorist acts, sabotage or general shortage of energy labour equipment facilities, material or supplies, failure of transportation, strike, lock outs, action of labour union, any dispute with any contractor/construction agency appointed by the Developer, change of law or any notice, order, rule or notification issued by any Courts/Tribunals, and/or Authorities delay in the grant of part/full completion (occupancy) certificate by the Government and/or any other public or competent authority or intervention of Statutory Authorities, or any other reason(s) beyond the control of the Development and subject to receipt of complete dues and other charges as per installment plan opted by the allottee (s). The allottee(s) shall not be entitled to any compensation on the grounds of delay in possession due to reasons beyond the control of developer. The developer on completion of the development/construction shall issue final call notice (offer of possession) to the allottee(s) who shall within time period mentioned in such offer of possession, remit all dues and take possession of unit after registration of sale deed. The date mentioned on the final call notice shall be deemed to be the date of offer of possession….”
12. Perusal of the said clause clearly shows that there is no agreed specific time frame for giving the possession of the unit to the complainant. However, reasonable time is the essence for possession of the unit.
13. Admittedly the complainant booked the flat in 2007 and made the payments in 2009 and offer of pre-possession was issued to him by the OPs on 07.01.2011 Ex.C-7 subject to clearance of the outstanding dues. Thereafter the complainant did not make the payment and rather disputed the charging of external electrification and maintenance charges @ Rs.2.25 per sq. ft. per month as per Ex.C-10 dated 16.02.2012. Therefore, the complainant has taken the possession on the ground that the OPs were charging huge expenses on account of external electrification and maintenance charges @ Rs.2.25 per sq. ft. per month and the said charges are on higher side as compared to the other buildings situated in the vicinity and further the complainant himself has given the authority and consent to the OPs to use his flat as a sample flat till he makes all the outstanding amounts due. The outstanding amounts due have not been paid by the complainant till 05.06.2012 as is evident from the demand notice issued by the OPs Ex.C-11 vide which the complainant was asked to pay an outstanding amount of Rs.20,073.45 chargeable under various heads. Once the complainant has paid the outstanding amounts he got the sale deed registered on 30.08.2012 Ex.C-13. Hence, on the one hand the complainant is disputing the said amount i.e. over charging and on the other hand after making the payment has got the sale deed registered on 30.08.2012 Ex.C-13. Therefore, the collective reading of all the documents pertaining to delivery of possession as stated above clearly shows that there is no delay on the part of the OPs to handover the possession of the flat in question as the possession has been handed over within reasonable time. Thus there is no delay on the part of the OPs. Therefore, the prayer for compensation of payment of interest on account of delayed offer of possession is ill founded and is not maintainable.
14. So far as overcharging of maintenance charges is concerned, it will be appropriate to refer to the relevant clause 28 of the terms of allotment pertaining to maintenance charges. Since the allotment letter is duly signed by the complainant and the terms are binding upon him, the complainant at any stage cannot agitate the increase or decrease of the maintenance charges as he himself has agreed to clause 28 of the terms of allotment. Relevant potion of Clause 28 is reproduced here below:
“Further, the Developer/its nominated agency reserves the right to increase maintenance charges/security deposit from time to time in keeping with the increase in the cost of maintenance services and the allottee (s) agree to pay such increases on demand by the Developer/its nominated agency for the maintenance. If the allottee (s) fails to pay such increase in the maintenance charges/security deposit or to make good the shortfall as aforesaid on or before its due date, then the allottee(s) authorizes the Developer to treat the allotment as canceled without any notice to the allottee and to recover the shortfall from the sale proceeds of the said unit and to refund to the allottee (s) only the balance of the money realized from such sale after deducting thereform the entire earnest money. Interest on delayed payment, any interest paid, due or payable and all other dues as set out in the payment plan. It is made specifically clear and it is so agreed by and between the parties hereto that this condition relating to the maintenance charges/security deposit as stipulated in this clause shall survive the conveyance of title in favour of the allottee (s) and the developer shall have first charge/lien on the said unit in respect of any such nonpayment of shortfall/increase as the case may be…”
Therefore on this account also, the complaint of the complainant is not maintainable.
15. Regarding charging of club fee till the club is complete, be kept in abeyance, as prayed by the complainant, we have perused the record and found that the complainant has not adduced any evidence to show the non existence of club facility. Thus in the absence of any evidence in this regard, the bald assertion of the complainant is of no help to him to prove his grievance regarding non facility of the club and charging of club fee by the OPs.
16. So far as deficiencies pointed out by the complainant in his flat like the poor quality of wood work, flooring, plaster of walls, electric installation etc. the complainant has proved his case from the photographs collectively exhibited as Ex.C-18 and once the such deficiencies and defects have been brought to the notice of the OPs vide Ex.C-19, the same having been not removed by the OPs till date, as the OPs have failed to show any rebuttal evidence in this regard, clearly goes to show and prove that the complainant has established the defects and deficiencies in the flat in question. The act of the OPs in not handing over the defect free possession of the flat to the complainant, is an act of deficiency in service and further not removal of the defects once pointed out by the complainant vide Ex.C-19 and even during the course of pendency of the present complaint, is an act of unfair trade practice on the part of the OPs and, therefore, the complainant deserves to be compensated on this account.
17. So far as taking back the unwarranted power back up and restoration of the power back up connection is concerned, it will be appropriate to refer to the terms of allotment Ex.C-2 i.e. Clause-28 regarding maintenance services to be provided by the maintenance agency. The power back up is part of the maintenance services duly agreed by the complainant. Therefore, the terms of allotment clause 28 is being applicable, the complainant has not been able to establish how the power back up charges are unwarranted. Therefore, on this account the complainant has failed to establish his case.
18. In view of above discussion, the complaint is partly allowed with the following directions to the OPs to:
(a) to pay to the complainant a lump sum amount of Rs.2,00,000/- (Rs. Two lacs only) for the removal of defects and deficiencies in the flat.
(b) to pay a lump sum compensation of Rs.25,000/- (Rs. Twenty five thousand only) to the complainant on account of mental agony, harassment and costs of litigation.
Compliance of this order be made 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 22, 2015.
(Mrs. Madhu P. Singh)
President
(Mrs. Sonia Bansal)
Member
