…Opposite parties.
Complaint under section-12 of Consumer Protection Act, 1986
Now amended Section 34 of Consumer protection Act 2019.
BEFORE: Amit Arora……………..President
Mukesh Sharma…………Member.
Indira Bhadana………….Member.
PRESENT: Sh. Parvati Menon, counsel for the complainant.
Sh. Jay Shankar, AR on behalf of opposite party No.1.
Sh. Sudhanshu Tripathi, AR on behalf of Opposite party No.2.
ORDER:
The facts in brief of the complaint are that all the residents of the said area were required to enter into maintenance & service agreement at the time when possession of the house was granted to the residents. The terms of this agreement forms the basis of the present complaint. The acts of opposite party No.1 falls within the purview of the definition of deficiency of service u/s 2(11) of Consumer Protection act, 2019 for the following reasons:
a) Maintenance of Open spaces such as general maintenance and repair, landscaping, parks, water supply, drainage, sewerage, roads, compound walls, paths, underground water reservoir, pipelines and other services:-
i) As regards the maintenance of Open Space was concerned, it was submitted that the said area was a gated society and it was open to the general public. Thus, there were no common recreational or common sitting areas which were exclusive for the use of the residents of the said area. Additionally, there were no common lifts, lights, garden, footpath or any green plantation in the said area, which raises the question that what does this ‘Open Space’ consist of? Therefore, the issue of charging an amount for maintenance of open spaces, exclusively for the residents of the said area, which simply sating does not exist must not arise.
ii) As regards the maintenance of drainage and sewerage services, it was submitted that the drainage and sewerage facilities in fact were provided, however the quality of such services challenges any rationale of the amount being levied. Not only were the facilities improper and in poor conditions but services offered upon such facilities were highly inefficient. Several complaints had been made in this regard with no avail from the opposite party No.1.
iii) As regards to the maintenance of landscaping in the said area, it was submitted that no such service had been provided till date and the amount was being arbitrarily charged from the resident of the said area.
iv) As regards to the maintenance of parks, compound walls and paths, it was again painfully submitted that there were no paths or compound walls in the said area. Therefore, again the question of providing maintenance for something that does not exist, simply does not arise. Similarly, as far as the parks were concerned, those situated in the said area were in such dilapidated condition that it even fails the purpose of having parks in the neighborhood.
v) As regards to water supply, it must be duly noted that the quality of water supplied was sub-standard to say the least. It was apparent that there had been no attempt to maintain the wholesomeness of water.
b) Maintenance and repair of streetlights:- Firstly, it was again submitted that the said area was not a gated society and the streetlights were not exclusively for the use of the residents of the said area. The roads upon which such streetlights had been erected were open roads for the use of the general public, if they so desire. Further, it was submitted that at various places in the said area, it had been observed that streetlights were in dilapidated and exposed conditions and were not functioning properly. Despite various representations, repeatedly, made in tyhis regard to the opposite party No.1 by RWA as well as individually by the residents, no action had been taken till date. Therefore, in absence of regular upkeep and maintenance of streetlights by you, the Notice, charging maintenance amounts towards the same was contrary to the terms of the agreement.
c) Common Security services – it was submitted that the opposite party No.1 had neither provided any security guard exclusively for the said area not made any alternative arrangement for the security of it. On account of continued failure on the part of opposite party No.1 to commit to their primary duty, theft and other offences continue to take place in the said area, a loss which could and must had been prevented and which had forced the residents to live in vulnerable conditions. It was again to be noted that the said area was not a gated society and thus securing the area requires a graer scrutiny.
d) Electricity charges : - Opposite party No.1 had got sanctioned single point supply connection under bulk supply (domestic) category form DHBVNL to supply electricity to the residents of the said area. However, the opposite party No.1 had not been raising bills as per the tariffs and procedure laid down by Haryana Electricity Regulatory Commission (Single point Supply to Employer’s Colonies, Group Housing Societies and Residential or Commercial cum Residential Complexes of Developers) Regulations 2013.
e) Additional Electricity charge being imposed arbitrarily and unilaterally :- It was to be noted that a cost of Rs.1,5 per sq. feet per month was charged by the opposite party as per the agreement. However, it was revised to a cost of Rs.1,25 per sq. feet per month with an additional electricity charge of rs.0.40 per sq. feet imposed unilaterally and arbitrarily. It was submitted that it had raised the total cost to rs.1,65 per sq. feet per month, to the detriment of the residents of the said area. Needless to say, such an increase, without any consultation, fails to even meet the basic natural law principle of equity. Additionally, the purpose of charging this extra cost of Rs.0.40 per sq. feet per month fails all parameters as the residents had been paying for their electricity on their own.
The complainant sent legal notice dated 28.09.2021 to the opposite party but all in vain. The aforesaid act of opposite parties amounts to deficiency of service and hence the complaint. The complainant has prayed for directions to the opposite party No.1 to:
a) provide cost expenditure certificate and account details as regards the services provided by them and to fix the invoice after deducting the charges for deficient services.
b) set aside the invoices previously raised by them against the complainant.
c) not charge the maintenance on square foot basis and to collect uniform maintenance charges from all the residents.
d) charge electricity at the rate fixed by DHBVNL and to reimburse the excess collected from the complainants.
e) provide quality services as per the agreement.
f) discontinue the unfair trade practice.
g) not amend the maintenance charges arbitrarily and to do so after consultation with the complainants in future.
h) pay Rs.2,00,000/- as compensation to owners of each houses, for causing mental agony and harassment .
i) pay the litigation expenses.
2. Opposite parties Nos.1 & 2 put in appearance through counsel and filed written statement wherein Opposite parties Nos.1 & 2 refuted claim of the complainant and submitted that the owners of units in V Block Elite Floor including the complainants were defaulter in making payments which as on 08.05.2022 comes out to be Rs.1,31,58,673/- towards Common area Maintenance Charges and Rs.15,81,557/- towards electricity charges, resulting in total of Rs.2,22,35,896/- (including other BPMS charges also). Opposite party No.1 had vide various meeting and emails, explain to the complainants on several occasions that opposite party No.1 had executed various agreements/work orders with various vendors/contractors/sub-contractors for providing various services in the project, being part of the maintenance services, and that their default in payment of the outstanding amount adversely hindered the ability of opposite party No.1 to make timely and regular payment of various charges/expenses to such vendors/contractors/sub contractors and that although opposite party No.1 was only an estate management company and had executed the said agreements/work orders with various vendors only on behalf of residents with understanding that they should pay opposite party No.1 who in turn would pay to the vendors which was well within the ambit of BPMS agreement. However, the defaults continued which constrained opposite party No.1 to issue notices to the complainants to pay but to no avail. It was submitted that the 18 complainants had filed present joint complaint regarding their respective units, situated at V-Block in opposite party’s project ‘Park Elite Floors, sector-76, Parklands at Faridabad. It was submitted that the 18 complainants (comprising of allottees and co-allottes) for their respective units had paid an amount totaling Rs.6,37,77,425/- towards total sale consideration. The present complainant was liable to be dismissed on account of concealment, suppression and misrepresentation of material facts and documents by the complainants which had a material bearing on the merits of the case and would clearly show that the complaint filed by the complainants were absolutely false and baseless and the allegations raised were devoid of merits.
While giving reference to various clauses of the BPMS agreement, the complainants had misrepresented before this Hon’ble Commission that opposite party No.1 had not provided various services as agreed under the BPMS agreement while concealing that the complainants were in huge defaults and that in terms of the same BPMS agreement being relied upon, the opposite party No.1 was not obliged to provide any service till the preious dues were cleared and that despite such huge outstanding, opposite party No.1 was still continuing to provide services that it can in the facts and circumstances of the case.
The complainant had misrepresented that opposite party had not been raising bills as per tariffs and procedure laid down by Haryana Electricity regulatory Commission (Single Point supply to Employer’s Colonies, Group Housing Societies and Residential or Commercial cum Residential Complexes of Developers) Regulations, 2013 (hereinafter “HERC Regulation, 2013) and Regulation 5.5 thereof and that the demands were being raised by opposite party No.1 in an arbitrary manner. In said regard, it was submitted that the allegations raised was baseless. Opposite party No.1 had always complied with the norms and had made changes keeping in line with the changing notifications/circulars/memos issued from time to time. However, it was reiterated that this Hon’ble Commission had no jusrisdiciton to decide said subject matter due to reasons/facts mentioned herein under.
It was submitted that at the time of execution of maintenance and service agreement with each individual residents, no fix rate of charges were agreed between the parties as electricity invoices were being generated/extracted each month on the basis of consumption of electricity i.e on pro-rata basis. Hence, because of said reason electricity bill or rate of unit varies every month. For easy understanding, calculation was shown as under:
“DHBVNL Electricity bill for period 01.03.2022 to 31.03.2022 – Rs.34,79,389/-.
Total units consumer – 657720
(Rate per unit – DHBVNL Total electricity bill/total unit consumed)
Rate per unit = Rs.34,79,389/- 657720 units = Rs.5.29/- per unit.
On said basis, opposite party No.1 had raised electricity invoice for the bill period from 01.03.2022 to 31.03.2022 at the rate of Rs.5.29/- per unit.
Complainants in regard to electricity charges, have further misrepresented that a cost of Rs.1,50/- per sq. ft. per month was to be charged as per “the agreement’ but revised cost of Rs.1.25/- per sq. ft. per month with an additional electricity charges of Rs.0.40/- per sq. ft. was imposed was unilateral and arbitrary. In this context it was submitted that vide Clause 3.1 and 4.1 of the Maintenance and Service Agreement, cost/rate of Rs.1.50/- per sq. ft was agreed between the parties towards maintenance charges and not towards electricity charges, as a matter of fact electricity bills/invoices were being raise dby the opposite parties on the basis of electricity consumption i.e on pro-rata basis. It was stated the residents of Elite Floors approached opposite party No.1 and raised concern qua higher rate of common area maintenance charge (CAM) and requested for reduction in the agreed and accepted maintenance charges of Rs.1,50/- per sq. ft. The opposite party No.1 disclosed with them the details and basis while explaining that the said rate also included billing towards common area electricity (CAE) to which the residents requested to segregate the “Common Area Electricity Charges from the maintenance charges (which was ought to be charged based on electricity consumption) whereas CAE was a direct cost transfer of electricity used in common area as it was being calculated simply on transfer of actual expense, hence there was no margin in said cost which was being utilized or enjoyed by opposite party No.1. accordingly, on the request of the residents and to strengthen transparency in customer billing opposite party No.1 started billing for CAE separately and reduced CAM from Rs.1,50/- per sq. ft. to Rs.1,25/- per sq. ft. It was submitted that CAE charges were never fixed as the rate charged was dependent on the consumption and accordingly calculated. It was pointed out that even after reducing agreed and accepted maintenance charges, residents had and were continuing to default in making payments towards maintenance charges. Such blocks like V-Block where the customers made huge defaults, opposite party No.1 was eventually constrained to withdraw the security faclity after giving due opportunity to clear the outstanding dues and accordingly, further opposite party No.1 on its own reduced monthly maintenance charge form 1.25/- per sq. ft. to Rs.1/- per sq. ft. while in other blocks where security was being provided, CAM was being charged @ Rs.1,25/- per sq. ft. It was pertinent to point out that costing to the opposite party No.1 for the project park elite floors was more than what was being charged and thus in consonance to clause 3.2 of the BPMS agreement opposite party No.1 was entitled to bill and recover the differential amount as actual costs incurred was higher than the costs/rates actually invoiced to the residents which should be done in due course. Opposite parties Nos.1 & 2 denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
3. The parties led evidence in support of their respective versions.
4. We have heard learned counsel for the parties and have gone through the record on the file.
5. In this case the complaint was filed by the complainant against opposite parties– BPMS & anr. with the prayer to: a)provide cost expenditure certificate and account details as regards the services provided by them and to fix the invoice after deducting the charges for deficient services. b) set aside the invoices previously raised by them against the complainant. c) not charge the maintenance on square foot basis and to collect uniform maintenance charges from all the residents. d) charge electricity at the rate fixed by DHBVNL and to reimburse the excess collected from the complainants. e) provide quality services as per the agreement. f)discontinue the unfair trade practice. g) not amend the maintenance charges arbitrarilyp and to do so after consultation with the complainants in future. h)pay Rs.2,00,000/- as compensation to owners of each houses, for causing mental agony and harassment . i) pay the litigation expenses.
To establish his case the complainant has led in his evidence, Ex.CW1/A – affidavit of Abhishek Srivastava, Ex.CW1/3 – election resolution, E
x.CW1/5 – Maintenance & Service Agreement, Ex.CW2/A – affidavit of CK Sathyan S/o Sh. CK Bhaskaran, Ex.CW2/2 – letter dated 20.03.2015,Ex.CW3/A – affidavit of Kanchan Biswas W/o Shri Saroj Biswas, Ex.CW3/2 – Maintenance & Service Agreement,, Ex.CW3/A – legal notice, Ex.CW4/A – affidavit of Sunil Kumar Jain S/o Shri Bimal Kumar Jain, Ex.CW4/2 – Maintenance & Service Agreement dated 12.09.2012, Rc.CW4/6 – legal notice, Ex.CW5/A – affidavit of Sanjay Singh S/o B.S. .Badauria, Ex.CW5/2 – letter dated 18.11.2019, Ex.CW5/4 – legal notice, Ex.CW6/A – Himanshu Saluja S/o Shri SDM Saluja, Ex.CW6/2 – letter dated 25.3.2014, Ex.CW6/A – legal notice, Ex.CW-7/A – affidavit of Manish Kumar Verma S/o Shri Ishwar Singh Verma, Ex.CW7/2 – Maintenance & Service Agreement, Ex.CW8/A – affidavit of Nirmal Kashyap W/o R.P.Kashyap, Ex.CW8/2 – Maintenance & Service Agreement, Ex.CW8/1 – legal notice,Ex.CW9/A - affidavit of Sanjeev Kumar Jha S/o Shri Gangadhar Jha, Ex.CW9/2 – Maintenance & Service Agreement, Ex.CW9/1 – legal notice, Ex.CW10/A – affidavit of Amresh Tripathi S/o Nagendra Tripathi,, Ex.CW10/2 – Maintenance & Service Agreement, Ex.CW10/7 – legal notice, Ex.CW11/A – affidavit of Ankur Chawla S/o Shri Ashok Kumar Chawla, Ex.Cw11/2 – Maintenance & Service Agreement, Ex.CW11/1 – legal notice, Ex.CW12/A – affidavit of Meenakshi Sharma W/o Mr. Sanjay Sharma, Ex.CW12/2 – letter dated 10.3.2015, Ex.CW12/A – legal notice, Ex.CW13/A - affidavit of Siddhi Vinayak S/o Shri R.Thakur, Ex.CW13/2 – Maintenance & Service Agreement, Ex.CW14/A – affidavits of Rajesh Khandelwal S/o B.P.Khandelwal, Ex.CW14/2 – Maintenance & Service Agreement, Ex.CW14/4 – legal notice, Ex.CW15/A – affidavit of Amit Nanda S/o Shri D.K.Nanda, Ex.CW15/2 – letter dated Ist June 2020, Ex.CW15/4 – legal notice, Ex.CW16/A – affidavit of Rekha Sharma W/o Shri Umakant, Ex.CW16/2 – letter dated 06.04.2019, Ex.CW16/4 – legal notice, Ex.CW17/A – affidavit of Meenakshi Khanna W/o Shri Rakesh Khanna, Ex.CW17/2 – letter dated 17.07.2017, Ex.CW18/4 – legal notice, Ex.CW18/A – affidavit of Tilak Raj Gautam S/o Shri Shyam Lal Gautam, Ex.CW18/2 – Maintenance & Service Agreement, Ex.CW18/4 – legal notice, Ex.CW19/A –affidavit of Meenakashi Sharma W/o Mr. Sanjay Sharma, Ex.CW20/A – affidavit of Sushma B. Trivedi W/o Shri Siddhi Vinayak, Ex.CW21/A – affidavit of Babita Jha W/o Sanjeev Kumar Jha,, Ex.CW22/A – affidavit of Sunita Gautam W/o Tilak Raj Gautam, Ex.CW23/A – affidavit of Bimal Prasad Jain S/o Kedarnath Jain, Ex.CW23/A – affidavit of Rita w/o Sanjay Singh Bhadauria, Ex.CW25/A – affidavit of Akhilesh Tripathi S/o Shri Nagendra Tripathi, Ex.CW26/A – affidavit of SDM Saluja S/o lt. Trilok Chand,, Ex.CW27/A – affidavit of Shalu Chawla W/o Ankur Chawla, Ex.CW28/A – affidavit of Rakesh Khanna S/o Shri Satish Kumar Khanna, Ex.CW29/A – affidavit of Dimple Verma W/o Manish Verma, Ex.CW-30/A - affidavit of Sudha W/o CK Sathyan. Ex.CW1/1 – Adhar card of Abhishek Srivastava, Ex.CW2/1 – adhaar card of C.K.Sathyan,, Ex.CW3/1 – adhar card of Kanchan Biswas,, Ex.CW4/1 – adhaar card of Sunil Kumar Jain, Ex,CW5/1 – adhaar carad of Sanjay Singh Bhadauria,, Ex.CW5/1 – affidavit of Himashu Saluja, Ex.CW7/1 – adhaar card of Manish Verma,, Ex.CW8/1 – adhaar card of Nirmal Kashyap, Ex.CW9/1 – adhar card of Sanjeev Kumar Jha, Ex.CW10/1 – adhaar card of Amresh Tripathi, Ex.CW1/1 – adhaar card of Ankur Chawla, Ex.CW12/1 – Adhaar card of Meenakshi Sharma, Ex.CW13/1 – adhaar card of Sidhi Vinayak, Ex.CW14/1 – Adhaar card of Rajesh Khandelwal, Ex.CW15/1 – adhar card of Amit Nanda, Ex.CW16/1 – adhaar card of Rekha Sharma,, Ex.CW17/1 – adhaarcard of Meenakshi Khanna, Ex.CW18/1 – adhaar card of Tilk Raj Gautam, Ex.C19/1 – adhaar card of Kanika Sharma, Ex.CW1/4 – Floor Buyer’s Agrement Ex.CW1/6 – photogrpah, Ex.CW1/7 – email dated 9.11.2021, Ex.CW4/3 – email dated July 14,2021,, Ex.CW1/8 – photo, Ex.CW10/3 - letter daed 27.08.2016, Ex.CW10/4 – letter dated 11.11.2016, Ex.CW10/5 – letter dated 15.04.2017 egarding speed breakers required in our society,, Ex.CW1/9 – lettr dated 7.11.2020, Ex.CW1/10 minits of meeting, Ex.CW2/3 – email dated 07.04.2015, Ex.CW1/16 – email dated 23.08.20202, Ex.CW1/11 to CW1/13 – photographs, Ex. CW1/14 – email dated 07.08.2021, Ex.CW2/4 – email, Ex.CW1/15 – photo,, Ex.CW4/4 – email dated May 2,2016,, Ex.CW1/A - Incoixce cum bill of supply, Ex.CW1/18 – Sales circular No. D-12/2021, Ex.CW1/19 to 20 – emails,, Ex.CW1/21 - photograph, Ex.CW1/22 – notice from BPMS for recovery of electricity charges and CAM chartes,, Ex.CW15/3 – Tax invoice,, Ex.CW11/3 – Tax invoice,, Ex.CW17/3 – Tax invoice,, Ex.CW5/3 – tax invoice, Ex.CW8/3 – Tax invoice,, Ex.CW!2.3 – tax invoice, Ex.CW2/5 – tax invoice, Ex.CW7/3 – tqax invoice, Ex.CW10/6 – tax invoice, Ex.CW14/3 – tax invoice, Ex.CW4/5 – tax invoice, Ex.CW1/24 – tax invoice, Ex.CW6/3 – tax invoice, Ex.CW9/3 – tax invoice, Ex.CW18/3 – tax invoice,, Ex.CW13/3 – email, Ex.CW16/3 – tax invoice, Ex.CW1/25 – legal notice,, Ex.CW1/26 – postal receipts, Ex.CW1/27 – email, Ex.CW1/28 – notice reminder, Ex.CW13/5 - email, Ex.CW1/29 – email
On the other hand counsel for the opposite parties strongly agitated and opposed. As per the evidence of the opposite parties Ex.RW1/A – affidavit of Jay Shankar, Authorized representative of the opposite parties. Ex.RW-2 – email, Ex.RW-3 – email, Ex.R-4 - Statement of Objects and Reasons, Ex.R-5 to 9– photocopy of photos, Ex.R-10 – electricity invoice, Ex.R-11 – letter, Ex.R-12 – email, Ex.R-13 – Notification dated 22.06.2018.
6. In this complaint, the complaint is filed under Section 35(1)(a) of the
Consumer Protection Act 2019. 30 complainants have joined hands and had approached this Hon’ble Commission as Consumers. The complainants had not served any permission from this Hon’ble Commission as a requisite under Section 35(1) of the act. Relevant sections are reproduced herein below for ready reference:
“Section 35(1) A complaint, in relation to any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided, may be filed with a District Commission by-
a) the consumer
(i) to whom such goods are sold or delivered or agreed to be sold or delivered or such service is provided or agreed to be provided ; OR
ii) who alleges unfair trade practice in respect of such goods or services;
c) one or more consumers, where there are numerous consumers having the same interest, with the permission of the District Commission, on behalf of, or for the benefit of , all consumers so interested.:……”
Since the complaint is filed under section-35(1) (a) of the Act, same is not maintainable as admittedly captioned complaint had been filed by more than one complainant and in particular by 30 complainants.
7. There is also an agreement between the complainant and BPTP vide Ex. CW1/4 in which arbitrary clause No.3 it has been mentioned:
“All or any disputes arising out of or touching upon or in relation to the terms of this agreement in the interpretation and validity of the terms thereof and the respective rights and obligation shall be settled amicably by mutual discussion
failing which the same shall be adjudicated to settle through Arbitration by the sole Arbitrator. The arbitration shall be governed by the Arbitration Conciliation Act, 1996 or any statutory amendments/modifications thereto for the time being in the Arbitration proceedings shall be held at an appropriate location in New Delhi by a Sole Arbitration shall be appointed by the Managing Director of the Seller/Confirming party i.e BPTP and the decision shall be final and binding upon the parties. The purchase(s) shall not raised any objection appointment of sole arbitrator by the Seller/Confirming party. The purchaser(s) hereby agrees that he/she/it shall have no objection to this appointment even if the person so appointed Sole Arbitrator, is an employee or advocate of the Seller Confirming party or is otherwise covered the Seller/Confirming Party and the purchaser(s) confirms that notwithstanding relationship/connection, the purchaser shall have no doubts or objections to the independence impartiality of the sole arbitrator.
Counsel for the complainant has placed on reliance the following authorities:
(i) U.P.Power Corporation Ltd. & Ors. Vs. Anis Ahmed (Civil Appel NO. 5466 of 2012) July 1,2013 (2013) 13 SCR 388.
(ii) M/s. Amita Sharma & Ors Vs. M/s Suncity Project Pvt. Ltd. Decided on 24.12.2018 passed by the Haryana Electricity Regulatory Commission, Panchkula, Haryana.
(iii) M/s. Emaar MGF Land Limited Vs. AFTAB Singh passed by the Hon’ble Supreme Court of India in Review petition © Nos. 2629-2630 of 2018 in Civil appeal Nos. 23512-23513 of 2017 decided on 10the December 2018.
(iv) Ansal Api Megapolis Buyer’s Vs. Ansal Hi-Tech Townships Ltd passed by the Hon’ble National Consumer Dispute Redressal Commission, New
Delhi on 08.11.2021.
Ratio of these authorities are not applicable to the facts of the present case.
Counsel for the complainant has also placed on record the dates of the conveyance deed issued by the opposite party No.2 which are as under:
