Punjab

Ludhiana

CC/14/480

Sukhminder Singh - Complainant(s)

Versus

Ashok Malhotra Group of Companies - Opp.Party(s)

19 Aug 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 480 of 10.07.2014

Date of Decision            :  19.08.2015

1.Sukhwinder Singh Sarai aged 33 years son of Sh.Mohinder Singh.

2.Lovepreet Kaur Sarai wife of Sukhwinder Singh Sarai, aged 32 years,

 Both residents of Flat/Floor No.591, Ist Floor, Palm Gardens, NH1, Sahnewal, District Ludhiana.

                                                                             … Complainants

                                                Versus             

1.Ashok Malhotra Group of Companies, S.C.F.11,12,13 Urban Estate I, Dugri, Ludhiana-141002, through its Managing Director/authorized signatory.

2.Malhotra Land Developers & Colonisers (P) Ltd.,SCF 12, Phase I, Urban Estate, Dugri, Ludhiana, through its Managing Director/authorized signatory.

                                                                             Opposite Parties

 

                    (Complaint U/s 12 of the Consumer Protection Act, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

SH.SAT PAUL GARG, MEMBER

MS.BABITA, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainants             :       Sh.Vishal Kumar Dua, Advocate

For OPs                           :        Sh.H.S.Mahal, Advocate

 

PER G.K DHIR, PRESIDENT

 

1.                          Sh.Sukhwinder Singh Sarai and Lovepreet Kaur Sarai filed complaint under Section 12 of the Consumer Protection Act, 1986(hereinafter referred to as ‘Act’) against the OPs, by alleging that they approached the Ops for purchase of a flat in Amgeco Floors at “Palm Garden”, Sahnewal, Ludhiana by submitting an application dated 20.02.2011. Ops offered flat No.591, Ist Floor in Palm Garden situate at NH1, Sahnewal, District Ludhiana. This flat is having approximate area of 1531 Sq.ft. Sale consideration of this flat was determined as Rs.30,00,000/-. Besides Rs.1,50,000/- in addition thereto to be paid as PLC. Allotment letter dated 22.03.2011 was issued by the Ops in favour of the complainants. Possession was agreed to be handed over within period of 18 to 24 months from the date of application dated 20.02.2011, but despite that the possession of the flat has not been handed over within the agreed time limit, despite numerous requests sent by the complainants to the Ops. However, after much agreed time limit, the possession was got by the complainants under protest because they were having no other place to reside. As per agreement, flats were to have several salient features like earthquake resistant structure, apex external finish, vitrified tiles floor, plastered walls & ceiling with plastic emulsion paint shades, high quality railing, well furnished kitchens, deluxe bathrooms, doors and windows of seasoned hardwood frame with skin moulded panel shutter etc. At the time of booking of the floor, Ops demonstrated a sample floor to the complainants by assuring that the alleged flat will be identical to the sample floor. However, the actual floor of the allotted flat is not as per the sample floor demonstrated by the Ops. Even the material used in furnishing of floor, walls and ceiling of the flats were not as per the agreed specifications. It is claimed that there was moisture in the whole of the floor and besides there were cracks all over the wall paint, as result of which, the walls stood deteriorated. Improper fitting of the floor tiles and their filling also complained of. Gap beneath the tiles existing and even the tiles were not cleaned at the time of delivery of possession. Furnishing of the kitchens also alleged to be incomplete because there was no space in the chimney in the kitchens. The plumbing work of the floor is also defective. All the three bathrooms of the floor alleged to be incomplete. In one of the bathroom, the plumbing work is not upto the mark. There is no paint work in the third bathroom. The Hollock type of wood was chosen to be used for woodwork, but cheaper quality wood was used by the Ops. The door glasses were not properly fixed and their thickness was lesser than that of agreed specifications. Apprehension of the glasses being broken due to sound in movement expressed in the complaint. Through space in the doors, dust continued to come inside, even when the doors are shut. Door locks even have not been put on the doors and whenever they have been put up, they are not in working condition. Though as per specifications, electric fitting were to be of Havel Brand, but Ops used cheaper quality of electric wire fitting. Construction work of all the floors has not been completed yet, due to which, complainants and their family has to live in loud noise and disturbance. This is despite the fact that Ops promised to complete all the construction and furnishing work of floors at one and the same time. There is no proper street lighting in the area because there is only one street light and rest of the area is galloped by dark. Stray cattle and dogs roams freely in the area, due to which, due living atmosphere is not provided. Even raining water enters in the bedrooms. No provision for proper security arrangement has been done. Though, complainants and other residents of the locality regularly complaints about the above said problems, but the Ops have not paid any heed to these requests. So, deficiency in service on the part of Ops alleged. Directions sought against Ops to replace all the defective articles/fixtures used in the floor to branded articles as promised. Rs.10,00,000/- as compensation for mental agony, but Rs.20,000/- as litigation expenses even claimed.

2.                          In joint written reply submitted by OPs, it is pleaded interalia as if the complaint is not maintainable being based on false and frivolous allegations; proceedings before Consumer Forum are summary in nature, but the complicated questions arising requires elaborate evidence and as such, this Forum has no jurisdiction. Engaging of expert for inspecting building and appointment of Local Commissioner alleged to be essential for assessing the actual and factual position of the building/flat in question. Admittedly, complainants entered into a contract with Ops on 22.03.2011. It is claimed that complainants are bound by the terms and conditions of the written agreement. Further, it is claimed that from clause 5(b) of the agreement, it is very much clear that timely payment of the installment is the essence of the allotment/contract/. Further as per clause 10(a) of the agreement, the allottee after getting the possession of the floor will not be entitled to raise any objection in respect of the works undertaken in the units/rooms of the said floor. Maintenance charges from the date of offer of the possession also has to be paid by the allottee, but the complainants committed breach of these terms and conditions because they failed to pay installments in time. It is claimed that Rs.7,00,000/- is still outstanding against the complainants and that the complainants at the time of getting possession of flat did not raise any objection. Maintenance charges even have not been paid by the complainants for the services to be provided by the Ops. The complainants have not approached  this Forum with clean hands. Besides, as per arbitration clause, all disputes and differences liable to be referred to Arbitrator and as such, complaint alleged to be not maintainable. Purchase of flat by the complainants admitted for the consideration/mentioned in the complaint. Each and every other averment of the complaint denied.

3.                Counsel for the complainants to prove their case, tendered in evidence affidavit of complainant no.1 as Ex.CA and even tendered documents EX.C1 to Ex.C39 and thereafter, closed the evidence on behalf of complainants.

4.                On the other hand, counsel for the OPs tendered in evidence affidavit Ex.RA of Sh.Deepak Kumar Ratra, General Manager of OPs and even tendered documents Ex.R1 to Ex.R15 and thereafter, closed the evidence.

5.                          Written arguments by both the parties submitted and then oral arguments of counsel for the parties were heard. Records gone through minutely. 

6.                From the pleadings and arguments, there remains no doubt that contract for purchase of flat was entered into between the parties and terms thereof were reduced in writing. As and when, a contract is entered, the parties are bound by the terms of the same. So deficiency in service has to be assessed on the basis of the produced material viz-a-viz the terms of the contract agreement.

7.                Though, an application under section 8 of Arbitration and Conciliation Act, 1996 was filed by the Ops for referring the matter to the Arbitrator, but that application was not pressed by counsel for the Ops by suffering recorded statement and that is why the same was disposed of being not pressed vide order dated 4.2.2015. So, arguments that this Forum has no jurisdiction due to arbitration clause no.31 of the Contract Agreement Ex.C1, has no force. As per law laid down in case Anil Hoonjan vs. Central Club(India) Limited and others-I(2014) CPJ-213( U. T.  Consumer Disputes Redressal Commission,U.T.Chandigarh), mere existence of arbitration clause will not oust  the  jurisdiction of Consumer Forum in view of Section 3 of the Act. Therefore, even if clause 31 in Ex.C1 may be there, but despite that jurisdiction of this Consumer Forum is not ousted. Benefit of ratio of cases titled as Hindustan Petroleum Corporation Ltd vs. M/s.Siba Gas Agency and others-2012(2)RCR(Civil)-284(S.C.); M/s.GE Power Controlls India Pvt.Ltd. vs. M/s.Ravi Trading Company-2014(2)RCR(Civil)-134(Punjab & Haryana High Court) can’t be availed by the counsel for the Ops because the said cases not decided with reference to the provisions of Act. Rather as and when case goes to Civil Court, then arbitration clause has to be enforced as per ratio of above cited cases.

8.                Bone of contention remains as to whether the deficiency in service on the part of Ops is there and as to whether due proof in that respect adduced or not? Though, complainants have pointed out certain defects in the floor possessed by them after the allotment, but due evidence in proof thereof not adduced by the complainants. No expert or architect or local commissioner got appointed by the complainants for establishing the deficiency in the construction. The extent of deficiency even not specifically pointed out, but vague and general allegations levelled that actual floor is not as per demonstrated specifications. What were the demonstrated specifications of the floor and as to what are the specifications of the floor of the flat allotted to the complainants qua that specific mention   not made. Even through affidavit of the complainant no.1 or in the pleadings of the complaint, mention not made as to how the material used in furnishing the floor, walls and ceiling was not upto the mark and as per the agreed specifications. Where the cracks in the wall paint develop qua that due evidence not adduced because extent of cracks, nature of the cracks or extent of there being repaired not brought on record through adduced evidence. In what way, fitting of the floor tile is improper qua that due evidence is not at all lead. What were the specifications of the material to be used qua that nothing stated and nor record of those agreed specifications of the material to be used has been produced on record. The kind, quality and nature of the material used even not specified. Deficiency in the kind, type and quality of the material could have been pointed out by examining the architect or any other such expert or any other expert in the line of building, but no such expert examined and nor prayer made for  such  appointment.  Only  photographs  Ex.C3  to  Ex.C39  are  produced  on record for pointing out the alleged deficiency. The photographic evidence alone is not sufficient for pointing out the alleged deficiency because these photographs will not speak about the kind of material used or the quality thereof. So, complainants virtually seeking relief without proving the exact extent of deficiency. As vague and general allegations levelled regarding deficiency without any proof of agreed specifications of the built structure, kind or quality of material to be used and kind or quality of material actually used and as such, deficiency in service not proved virtually by the complainants.

9.                Moreover, submissions advanced by Ops has force that elaborate evidence required for assessing the kind, nature and quality of deficiency and as such, elaborate evidence is required. Complicated questions virtually are raised requiring elaborate evidence and as such, the matter deserves to be got decided from Civil Courts.

10.              The contemporaneous circumstances pointed out to the deficiency even not established by adducing evidence of an expert and as such, relief on vague and general allegations of the alleged deficiency cannot be granted through these summary proceedings. Proceedings before Consumer Forum are summary in nature and as such, when for determining of the put forth allegations, an elaborate evidence required, then complainant should be directed to approach Civil Court is proposition of law laid down in plethora of cases titled as P.N.Khanna vs. Bank of India-II(2015)CPJ-54(N.C.); Bright Transport Company vs. Sangli Sehkari Bank-II(2012)CPJ-151(N.C.); Oriental Insurance Company Limited vs. Munni Mahesh Patel-IV(2006)SLT-436=IV(2004)CPJ-1(S.C.); Reliance Industries Limited vs. United India Insurance Company-I(1998)CPJ-13(N.C.); M/s Singhal Swaroop Ispat Ltd. vs. Union Commercial Bank-III(1992)CPJ-50(N.C.); Sangli Ram vs. General Manager, United India Insurance Co.Ltd.-II(1994)CPJ-444=1994(I)CPR-434;Harbans and Company vs.State Bank of India-II(1994)CPJ-456=1994(I)CPR-381 and Jayanti Lal Keshav Lal Chouhan vs. National Insurance Co.Ltd.-1994(1)CPR-396.  In view of this, the complaint deserves to be disposed of with directions to the complainants to approach Civil Courts for redressal of their grievances.

11.              Admittedly, the complainants have got the possession of the flat. As per clause 10(a) of Contract Agreement Ex.C1=Ex.R1, after taking possession of the flat, the allottee will not be entitled to raise any objection in respect of any item of work in the units/rooms of the said floor or in any manner with regard to the workmanship or specifications of the materials used. In view of this clause 10(a) of Ex.C1=Ex.R1, complainants stopped from raising objection with regard to the specifications of the materials used as well as workmanship. Whether or not actually the protest was raised by the complainants qua that no written material produced on record. So much so, letter of protest if any written by the complainants even has not been produced and as such, allegations of raising of protest are not proved in these summary proceedings. Whether or not really the complainants yet to pay the balance amount of Rs.7,00,000/- qua that material has not been brought on record by the Ops.  Ops  have  just   produced   receipts/bills  Ex.R3  to  Ex.R14  for   showing the purchase of building material from different concerns. However, the specifications of the material to be used as per the terms of the contract agreement Ex.C1=Ex.R1 even not brought on record by the Ops. Without proof of those agreed specifications, it is not possible to ascertain as to whether       the material used is of inferior quality or not. Clause 5(b) of Contract Agreement Ex.C1=Ex.R1 provides that timely payment of installments is the essence of the allotment and company(Ops) are not under an obligation to send demands/reminders for payment. Though, time schedule of payment produced as annexure-1 attached with Ex.C1=Ex.R1, but date of delivery of possession not proved. Even it is not proved as to when the casting of the ground floor or of the first floor or of second floor took place. Even it is not proved as to on which date completion of the external plaster or internal plaster took place. In the absence of proof in this respect, it cannot be held that actually deficiency in service in payment of installments committed by the complainants. No receipt of payment of installment produced by any of the parties. So, allegation of outstanding balance of Rs.7,00,000/- is not proved.

12.              As per clause 18 of Contract Agreement Ex.C1=Ex.R1, allottees(complainants) to deposit by way of interest free security of sum towards maintenance charges for ensuring timely payment of maintenance. These maintenance charges shall become payable from the date of offer of possession. Acceptance of payment of agreement if required is to be executed by the allottees. As per clause 19 of Ex.C1=Ex.R1, allottee to pay maintenance charges from the date of offer of possession of the floor. Those charges to be fixed by the company or its appointed agency from time to time depending upon the maintenance costs.No evidence adduced to show the putting forth of demand of deposit of security towards maintenance charges or execution of agreement of maintenance charges. Such demand to be raised by Ops and thereafter, payment of maintenance charges to be made. As raising of this demand not proved and as such, question of payment by the complainants does not arise. So, submissions of counsel for the Ops has no force that breach of terms contained in clause 18 and 19 of Ex.C1=R1 committed by the complainants. What was the kind of wood required to be used and what is kind and quality of used wood qua that no material produced, despite fact that elaborate evidence required. The points on which  street light is required not proved, even not specified. It is not proved as to   what quality of electricity wiring used in the flat. So, deficiency in that respect even not proved. However, Consumer spending amount of Rs.30,00,000/-, should get the due as per agreed specifications and as such, complaint deserves to be disposed of in terms that complainants may avail appropriate remedy by knocking at the doors of the Civil Court.

13.              Therefore, as a sequel of the above discussion, the present complaint stand disposed of in terms that complainants are directed to avail appropriate remedy by knocking at the doors of Civil Court for redressal of their grievances. Keeping in view the facts and circumstances of the present case, no order as to compensation and litigation costs is passed. Copies of this order be made available to the parties free of costs as per rules.

14.                        File be indexed and consigned to record room.

 

(Babita)                                   (Sat Paul Garg)                            (G.K.Dhir)

 Member                                   Member                                       President

Announced in Open Forum

Dated:19.08.2015

Gurpreet Sharma.