Delhi

East Delhi

CC/1144/2014

ANJU - Complainant(s)

Versus

ASSOTECH LTD - Opp.Party(s)

04 Apr 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

C.C. NO. 1144/14

 

Mrs. Anju Naithani

R/o E-136, The Nest, Assotech

Crossing Republic, Ghaziabad – 201 016                     ….Complainant

Vs.    

Assotech Limited

Through its Managing Director

Regd. Off: 148-F, Pocket – IV

Mayur Vihar Phase-I, Delhi – 110 091

Corp. Off.: Assotech House

A-12, Sector-24

Noida, UP – 201 301                                                        …Opponent

 

Date of Institution: 17.12.2014

Judgement Reserved on: 04.04.2018

Judgement Passed on: 09.04.2018

CORUM:

Sh. Sukhdev Singh (President)

Dr. P.N. Tiwari (Member)

Ms. Harpreet Kaur Charya (Member)

 

Order By: Sh. Sukhdev Singh (President)

 

JUDGEMENT

            This complaint has been filed by Mrs. Anju Naithani against Assotech Limited (OP) under Section 12 of the Consumer Protection Act, 1986 with allegations of unfair trade practice and deficiency in service. 

2.         The facts in brief are that complainant Mrs. Anju Naithani booked Flat No. E-136 in the project The Nest, Assotech, Crossing Republic, Ghaziabad – 201 016 alongwith her son Tarun Naithani by making an advance payment of Rs, 3,15,000/- vide receipt no. 3572, dated 29.08.2009.  Flat No. 136 was allotted on 11.09.2009 with super area of 1730 sq. feet at a net cost of Rs. 31,14,000/-.  The date of possession was recorded as 30.07.2011.  The cost of flat included the cost of covered car parking, club membership, IFMS, EDC FFC etc. 

            As per the agreement, another amount of Rs, 3,18,300/- was paid on 11.11.2009 and the remaining amount of Rs. 25,00,000/- was applied for loan through Assotech Limited from HDFC.  HDFC issued bank draft of   Rs. 25,00,000/- on 10.12.2009 to the Assotech. 

            In the last week of February 2014, they were informed that the company have increased the super area to 1810 sq. feet, without any prior notice.  The complainant paid an amount of Rs. 2,34,142/- and                Rs. 2,00,000/- towards the remaining cost of flat as per demand of OP under their computation of cost on 01.03.2014 and Rs. 3,48,000/- for the registration of the said flat with directions from them to pay additional amount of Rs. 20,100/- at the time of registration as lawyer fee etc.  Registration of the flat was made on April 27, 2014. 

            She has further stated that on making the payment, the complainant visited the site office of The Nest to take possession of the flat.  She was told by the Project Manager that it requires a period of at least 6 months to make the said flat ready for possession.  She explained to OP that she has the desire to wed her daughter from the said flat on 02.05.2014 and she saw a dream to shift in the said flat by October 2011, prior to the retirement of her husband in November, 2011.  She showed her other desires which were not fulfilled. 

            The flat was not made ready and the complainant was handed over flat in an incomplete stage on 01.05.2014.  She took possession of the incomplete flat endorsing her pain on the possession letter and incomplete stage of work on the inventory of the flat, recording that the work was in progress and keys not handed over.  The flat was having a number of deficiencies which were explained to the staff of OP.  A mail was also sent to OP on 19.05.2014 explaining major deficiencies such as:

1. Major seepage due to defective fixation of equipment in bathroom.  Shaft has regular sound of leaking water but neither visible nor audible to supervisors.  Window cannot open as pipe layout obstructs it.  Accumulated solid absorbs water very well to sustain seepage.
2.  Absence of grouting to make it seepage proof.  Wide gaps are visible and accepted for correction but no resulted.
3. Aluminium fittings are fixed in an improper manner causing damage to fittings as well as to floor.  Door locks are inoperative and therefore decorative.  Stoppers and buffer are absent.  Wherever they are, it is ineffective.
4. Absence of plastering at large part of loft.  Bricks are coming out.  It was explained that difficult to do job for restriction of height.
5. Very good quality electrical fixtures but connections are deliberately left open in side box to earn extra money.  Switches are fixed in reverse directions so “on” is “Off” and it needs experience to learn.  Blanker are absent.  Mr. Pradeep made assurance of service but nowhere visible.
6. There is aluminium frame fixed in the corridor from last 25 days without glass exposing the security and privacy of flat.  They agree with view but no results, assuring that my safety will not be compromised in the absence of glass

 

            However, OP did not pay any heed.  Last mail was sent on 09.09.2014 explaining at least to attend the deficiencies.  In the last mail, she narrated the deficiencies such as :

1. Left has no plaster and photo displaying naked poor quality bricks is attached.
2. Shaft work in incomplete, lacking plaster etc. as per work specification as expected from reputed builder as Assotech and national norms.  It has just been whitewashed without any finishing.
3. A few numbers of floor tiles are broken, cracked and need replacement.  The cistern cover of WC in one bathroom needs replacement being damaged.
4. Aluminium door frames need fittings like buffer, proper alignment so that door is closed and locked.  Iron railings of all balconies have cement mortar etc. attached.  Primer over iron railings distinctly visible, proving no scrubbing.
5. There is seepage in all walls adjoining bathrooms.  Photo is attached for record.  It needs perhaps proper grouting and thereafter finishing.
6. No fire water sprinklers have been fixed over pipes to provide a false sense of security to believe that water would spray, leaving incomplete its sensor, fire control boards, PA system aside, being work outside my flat.

            She has further stated that the wooden floor provided in master bedroom was bulging at many points.  The quality of construction was poor.

            She has further stated that she also made a payment of                Rs. 1,50,000/- on account of covered parking which has not been provided.  She has also made payment for fire fighting and other amenities like club, external development etc.  There was no arrangement of water for fire fighting.  They have also been collecting maintenance charges @ Rs. 1.60 per sq. feet inspite of deficiencies.  Even fire alarms and water arrangement for firefighting were not available.   They have also violated the national norms on fire safety.

            She has further stated that inspite of deficiencies pointed out, OP have not rectified the defects.  Thus, she has claimed relief and prayed for compensation on account of loss, and detriment to her interest, an amount of Rs. 1,00,000/- as cost of repair; covered parking, return the amount of Rs. 1,50,000/- collected towards car parking, interest @ 18% for delay in handing over the flat, implement basic fire safety norms, compensation of Rs. 1,00,000/- on account of harassment and Rs. 20,000/- towards litigation cost. 

3.         In the written statement, filed on behalf of Assotech Limited (OP), they have stated that the flat in question was given actual possession pending final finishing touch on the specific request of the complainant that her daughter’s marriage ceremonies should be performed therein.  It was taken actual physical possession pending final touch at the willful choice of the complainant on 01.05.2014.  The possession was taken on execution of registered sale deed of dated 25.04.2014.  This sale deed also mentions that the vendees have verified the description and physical condition of the apartment and were fully satisfied with the same. 

            After 18 days from the date of physical possession, the complainant served a mail dated 19.05.2014 alleging deficiency of service inspite of fact that the flat was voluntarily taken into possession with full knowledge of its condition.  She also filed the complaint on 15.12.2014.  Clause 3 of the registered sale deed categorically excluded any claim or complaint and provides that the complainant shall have no complaint or claim against the OP as to any item of work, quality of work, material, area/size etc. etc. after taking physical possession of the flat. 

            They have also stated that jurisdiction of the Delhi Courts was barred as Clause 32 of the registered sale deed excludes the jurisdiction.  They have also stated that final finishing touch of the flat has already been completed and the alleged deficiencies have been remediated to the complete satisfaction of the complainant as per acknowledgement cards dated 07.01.2015 duly signed by the complainant. 

            They have also stated that the value of the flat was Rs. 36,00,000/- which oust the pecuniary jurisdiction of this court.  They have also stated that all the facilities have been provided to the residents.  They have denied other facts also.

4.         Rejoinder to the WS was filed by the complainant where the contents of the WS have been denied and has reaffirmed the averments of her complaint.

5.         In support of its complaint, the complainant has not filed any evidence.

            Assotech Limited (OP) have examined Shri Sandeep Jain, Authorized Representative of OP, who have deposed on affidavit and reiterated the contents of the reply.  He has also got exhibited documents such as copy of power of attorney executed by OP (Ex.DW1/1), copy of application form (Ex.DW1/2), allotment letter dated 11.09.2009 (Ex.DW1/3), copy of pre-inspection cum intimation letter dated 11.10.2013 (Ex.DW1/4), copy of sale deed dated 25.04.2014 (Ex.DW1/5), copies of Fire NOC and completion certificate (Ex.DW1/6 and 1/7) and copy of acknowledgement cards dated 07.01.2015 (Ex.DW1/8).   

5.         We have heard Ld. Counsel for OP and have perused the written submissions filed by the complainant.  It has been argued on behalf of OP that this forum has no pecuniary as well as territorial jurisdiction as the value of the flat was Rs. 36,00,000/- and complainant was estopped from raising any deficiency on the part of OP as per Clause 3 of the Sale Deed, when she has already taken possession. 

            On the other hand, written points, filed on behalf of the complainant that Delhi Courts have jurisdiction as the registered office was located at Mayur Vihar.  However, she has not pointed out with regard to the pecuniary jurisdiction. 

            The first and foremost point which is taken up is with regard to the territorial jurisdiction.  Though the property has been at Ghaziabad and registered sale deed has been executed at Ghaziabad, but the fact that OP have its registered office at Mayur Vihar, this forum has territorial jurisdiction to entertain this complaint.  Therefore, the argument of           Ld. Counsel for OP in respect of territorial jurisdiction goes.

            Coming to the second argument in respect of pecuniary jurisdiction, admittedly, the value of flat has been shown as Rs. 36,00,000/- in the sale deed, executed by the parties.  When the value of the flat has been          Rs. 36,00,0000/- which is more than Rs. 20,00,000/-, it was beyond the pecuniary jurisdiction of this forum, therefore, this form has no pecuniary jurisdiction to entertain the complaint.  This argument of Ld. Counsel for OP holds good.   

            Coming to the third argument, admittedly, Clause 3 of the sale deed states “that upon taking over possession of the said apartment, the vendee shall have no complaint or claim against the vendor as to any item of work, quality of work, material area/size of apartment or on any other ground whatsoever”.  The fact that complainants have put their signatures on this sale deed and have taken possession; certainly, they were estopped from raising any dispute or pointing out any deficiency on the part of OP. 

            Lastly, the complainant have not led any evidence in support of her complaint.  Since, the complainant have not led any evidence, her complaint goes. 

            In view of the above, we are of the opinion that complaint of the complainant does not survive and the same is dismissed.  There is no order as to cost.  

          Copy of the order be supplied to the parties as per rules.

            File be consigned to Record Room.

 

(DR. P.N. TIWARI)                                              (HARPREET KAUR CHARYA)

Member                                                                                Member    

            (SUKHDEV SINGH)

             President