BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAS NAGAR, MOHALI
Consumer Complaint No.538 of 2014
Date of institution: 25.08.2014
Date of Decision: 11.06.2015
Sangita Angra w/o Shri Vinod Kumar Angra Kalia, resident of House No.137, 1st Floor, Roura, Sector-2, Bilaspur (H.P.)
……..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.
………. Opposite Parties
Complaint under Section 12 of the
Consumer Protection Act, 1986.
CORAM
Mrs. Madhu. P. Singh, President.
Shri Amrinder Singh, Member.
Mrs. R.K. Aulakh, Member.
Present: Shri Arihant Goel, counsel for the complainant.
Shri Suneet Pal, counsel for the OPs.
(Mrs. Madhu P. Singh, President)
ORDER
The complainant has filed the present complaint seeking following direction to the Opposite Parties (for short ‘the OPs’) to:
(a) charge the maintenance charges at the pre determined rate of Rs.1/- per sq. ft. per month instead of Rs.2.25 per sq. ft. per month.
(b) to waive off the capital replacement fund forever.
(c) not to charge maintenance and club fee till completion of the whole project.
(d) to make the fire fighting system in working condition and make the already delivered flats as inhabitable.
(e) to pay compensation to the tune of Rs.10.00 lacs on account of mental tension, agony and torture and Rs.20,000/- as litigation cost.
The complainant’s case is that he has booked one flat bearing No. Juniper 203 having 1767 sq. ft. super area @ Rs.1188.85 per sq.ft. amounting to Rs.21,00,079.50 with OP No.1 to 3. The total sale consideration of the above said unit after adding the basic sale price and preferred location charges of Rs.50/- per sq. ft. comes to Rs.21,88,429.50. OP Nos.1 to 3 deals in construction and sale of township apartments under brand name of Ansal Woodbury Apartments at Zirakpur. OP Nos.1 to 3 lured the buyers by making tall promises like that of water bodies, park, jogging park, entrance to pavilion, gazebo, badminton court etc. and fake claims of providing fire fighting arrangements, piped 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 bedrooms and 5 KVA for 3 Bedrooms etc. The complainant and her husband booked a flat No.Juniper 203 with the OPs by paying a sum of Rs.10,00,000/- as booking amount on 12.07.2010. The complainant and her husband were assured that the flat would be ready for possession on 15.09.2010. The complainant opted for down payment plan. The complainant paid cost of the flat alongwith interest as charged for delayed payment vide receipts Ex.C-4 to C-10. She also made the payment towards interest free maintenance security (IFMS) @ Rs.25/- per sq. ft. alongwith common maintenance charges and capital replacement fund in advance for a period of six months which was required for obtaining NOC for registry. The complainant was promised to deliver the possession of the unit in 2010 but the OPs did not kept the promise inspite of repeated requests. On 07.04.2011 the OPs while answering one such email of the complainant promised to send the offer of possession by June, 2011 but it was finally delivered in the year 2012 and that too with deficiencies. On 29.07.2011 OP Nos.1 to 3 with an intention to collect more money issued an offer of possession and also issued a statement of account as on date mentioning therein the total amount required to be paid by the complainant alongwith the payment required for registration of the unit with the Sub Registrar. OP Nos.1 to 3 cleverly did not mention the ancillary payments towards IFMS, CAM and Capital Replacement Fund and has shown these amounts as payable whereas these have already been paid by the complainant. Besides this as per the statement of account, the complainant was shown to have paid Rs.26,89,848.13 whereas she has paid Rs.30,63,532/- which clearly shows the unfair trade practice on the part of OP Nos.1 to 3. After issuance of letter of offer of possession, the complainant cleared all the dues vide cheque dated 25.07.2011 which has been acknowledged by OP Nos.1 to 3 vide receipt dated 02.08.2011. On 07.09.2011 OP Nos.1 to 3 issued NOC in favour of the complainant. On 17.09.2011 OP Nos.1 to 3 issued letter to the complainant mentioning therein that physical possession would be handed over on 07.10.2011 whereas the actual letter offering physical possession was issued on 28.02.2012. The complainant alongwith other allottees and officials of OP Nos.1 to 3 made joint inspection on 15.12.2011 by visiting the flats and highlighted the discrepancies in the flats which were duly acknowledged by the officials of OP Nos.1 to 3 and letter dated 15.12.2011 showing discrepancies in the flats alongwith signatures of officials of OP Nos.1 to 3 is Ex.C-19. OP No.1 to 3 threatened the complainant that if the possession of flat having multiple deficiencies is not taken then the holding charges @ Rs.5/- per sq. ft. per month will be charged from the complainant. On 26.03.2012 the complainant alongwith other allottes visited the site for taking up physical possession but the representatives of OP Nos.1 to 3 plainly refused to handover the possession after which the complainant and other allottees wrote letter to AGM (Marketing) of OP Nos.1 to 3. The OPs have charged exorbitant high rate on account of club fee of Rs.60,000/- and Rs.13,42,292/- as external electric charges and Rs.44,175/- as interest free security for maintenance agency and Rs.10,602/- as maintenance charges for six months. Further club building is very small and has been constructed by encroaching the party area and only 14 persons can sit and is like a drawing room which has been constructed at approximate cost of Rs.6 lacs whereas OP Nos.1 to 3 have collected Rs.96.00 lacs from 160 allottees (Rs.66,000/- per flat). The excess amount should be returned to the allottees alongwith interest by OP Nos.1 to 3. The complainant has also paid an amount of Rs.88,350/- as Preferential Location charges for the flat as the flat should be either park facing or swimming pool facing but the OPs have failed to deliver the flat either as park facing or swimming pool facing. The OPs have also increased maintenance charges from Rs.1/- to Rs.2/- per sq. ft. per month and capital replacement fund from Rs.0.25 to Rs.0.50 per sq. ft. pm meaning thereby that the maintenance charges of Rs.4,355/- per month whereas the prevailing rate in the vicinity is Rs.400-800 per month. The complainant sent a legal notice dated 03.09.2012 to the OPs calling upon them to remove the defects but the OPs have failed to do even till today. Some similarly situated persons like complainant received a letter dated 28.03.2013 from OP No.4 wherein the OPs have waived off the capital replacement fund on their own without any basis. OP No.4 is charging for power back up meter installation and other related charges whereas as per allotment letter 5 KW back up is to be provided by OP No.3 and whatever accessories are required for enabling power back is to be done by OPs only and the complainant is not liable for charges relates to accessories of power back up. Thus, on these allegations the complainant has filed the present complaint.
2. Upon notice, the OPs appeared and filed joint written statement. In the preliminary objections the OPs have pleaded that complainant is not consider as defined under provisions of Section 2 (1) (d) of the Consumer Protection Act. The complainant has booked the flat for investment/commercial purpose as she has already a residential flat where she is residing since long. The complaint is time barred and this Forum does not have the territorial and pecuniary jurisdiction to adjudicate the present dispute. On merits, it is denied that fake or tall promises were made by OP Nos.1 to 3. All the promised facilities have been provided and functional and are being used by the residents of the society. The Ops never delayed the possession of the flat and in fact it was the complainant who herself failed to make timely payments. The flat of the complainant is not mentioned in the joint inspection report. The physical possession was offered only after completing the building and it is denied that the complainant was ever threatened to take physical possession of incomplete flat. There was no defect in the apartment at the time of when possession was delivered and the complainant had not raised any objection at the time of signing Ex.C-21. The possession was offered within the assured time. The flat and building is complete in every aspect. The money collected by OP no.4 is necessary to maintain the group housing society and quality of services cannot be compromised. The rates were calculated considering the cost of maintenance. However, due to inflation, steep rise in cost factor the rates were revised which was informed to the complainant. Capital Replacement Fund is charged from the occupants to create the corpus of fund for replacement/major repair of capital assets of the building. The rate is worked out on the basis of estimated working like of the capital assets/equipment/machinery and need to incur major expenditure. The maintenance agreement was duly read and understood at the time of application for allotment of the unit. The material used is of high quality and as per standards. Denying any deficiency in service on their part the OPs have sought dismissal of the complaint.
3. Evidence of the complainant consist of her affidavit Ex.CW-1/1 and copies of documents Ex.C-1 to C-24.
4. Evidence of the OPs consist of affidavit of Mintu Kumar their authorized representative Ex.OP-1/1.
5. We have heard learned counsel for the parties and gone through their written arguments.
6. Admittedly the complainant is in possession of property since 18.04.2012 vide possession letter Ex.C-21. As per complainant there is delay of two months in delivery of possession for which the complainant is entitled to invoke the penalty clause as per terms of agreement and the same has not been paid to her by the OPs. The next grievance of the complainant that once she has been put into possession of the property, she found certain defects in the quality of work which have not been removed by the OPs despite raising the same before the OPs. The third issue raised in the complaint regarding unilaterally enhancement of maintenance charges from Rs.1/- per sq. ft. to Rs.2/- per sq. w.e.f. August, 2012 and capital replacement fund. Another issue raised in the complaint regarding charging of club fee by the OPs till the completion of the whole project and non functional of fire fighting system is another issue of grievance raised by the complainant as the same has not been addressed by the Ops despite requests in this regard. On these accounts the complainant has alleged deficiency in service.
7. We would like to address the complaint issue wife i.e. (i) regarding maintenance charges and capital replacement fund. The perusal of Ex.C-22 i.e. tripartite maintenance agreement duly executed, clause-2 (a) i.e. maintenance services, scope and charges stipulates maintenance charges @ Rs.2/- per sq. ft. per month. Once the complainant has admitted the payment charges @ Rs.2/- per sq. ft. per month while executing the maintenance agreement, she cannot in any manner dispute the same as the terms of agreement are sacrosanct and binding between the parties. Further the perusal of Ex.C-14 i.e. the offer of possession letter alongwith statement of account showing amount payable at the time of offer of possession shows that the complainant has been charged common maintenance charges for the first six months @ Rs.1/- per sq. ft. per month. In fact the complainant has been charged less than agreed amount of Rs.2/- per sq. ft. per month. Further perusal of Ex.C-24 shows that the agreed amount of Rs.2/- per sq. ft. per month has been further reduced by the Ops to Rs.1.50 per sq. ft. per month and this reduction is very in the knowledge of the complainant. Thus, we do not find anything wrong if the OPs have reduced the agreed rate of Rs.2/- per sq. ft. to Rs.1/- per sq. ft. for initial six months and Rs.1.50 per sq. ft. per month for the subsequent period. The benefit of reduction has accrued to the complainant and the OPs in no manner can be held liable for any deficiency in service or unfair trade practice in this regard. The allegation of the complainant is quite contrary to evidence on record as appreciated above.
8. Regarding capital replacement fund it will be appropriate to look into the allotment letter Ex.C-2. Clause-5 and 6 of the said allotment letter clearly stipulates that the cost of installing, running and maintenance of sewerage effluent treatment plant, pollution control devices, cost of external electrification, electric connection, water service connection, sewer connection are not included in the basis sale price of the residential unit and shall be payable by the allottee as per demand to be determined by the developer. Thus, in the capital replacement fund, the complainant has paid her share and still as per Ex.C-14 the OPs have charged Rs.0.25 per sq. ft. per month for first six months total amounting to Rs.2650/- per month. The said charges cannot be waived off as prayed by the complainant. We do not find anything wrong on the part of the Ops to charge the said amount as per agreed terms of the allotment letter.
9. Regarding club charges, as per terms of allotment the club membership is mandatory and is a paid service which is not included in the basic selling price. As per terms and conditions of allotment it is no where mentioned that the club membership will be applicable only after completion of the project. As per both the parties the club is in operation and complainant and other residents are availing the club facilities on payment. The allegation to say that till the project is completed the club membership be not charged is without any basis and cogent evidence on record.
10. Regarding non operational fire fighting and lack of other amenities and facilities. Neither the complainant has adduced any evidence in support of her contention nor any rebuttal evidence from the OP. Thus, for want of evidence this issue remains unanswered at our hands. However, the perusal of Ex.C-21, i.e. physical possession certificate issued by the complainant clearly states that the complainant is fully satisfied as regards to all items of work done, quality of construction, material used and installations in the flat, the fixtures and fittings of the flat are intact. Thus, once the complainant has herself admitted everything in order, now at belated stage her bald assertion without supporting evidence is of no help to her. Thus, there is no deficiency in service on the part of the OPs.
11. In view of above discussion, the complaint being devoid of any merit is hereby dismissed with no order as to costs. 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.
June 11, 2015.
(Mrs. Madhu P. Singh)
President
(Amrinder Singh)
Member
(Mrs. R.K. Aulakh)
Member
