Delhi

StateCommission

CC/09/308

MITTALS ROYALS ORCHADS RESIDENTS WELFARE ASSOCIATION - Complainant(s)

Versus

CHAVAN RISHI RESORTS PVT. LTD. - Opp.Party(s)

17 Mar 2016

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

                                                Date of Decision: 17.03.2016

Complaint Case No.308/2009

In the matter of:

M/s Mittals Royals Orchards

Residents Welfare Association

(MRO-RWA) registered Resident

Welfare Association Society

having its Office at B-54

Mittals Royale Orchards, Dhani

Shankarwali, Village Bherakalan

Tehs:1 Farukh Nagar, District

Gurgaon, Haryana                              ………….Complainant

Versus

Chavan Rishi Resorts Pvt. Ltd.

201/6, Kaushalya Park

Hauz Khas

New Delhi-110016                                 ….Opposite Party

 

CORAM

 

N P Kaushik, Member (Judicial)

S C Jain, Member

1.     Whether reporters of local newspaper be allowed to see the judgment?  Yes

2.      To be referred to the reporter or not? Yes      

S.C. Jain, Member

JUDGMENT

1. This Complaint has been filed by the complainant which is a registered Resident Welfare Association u/s 17 of the Consumer Protection Act, the Complainant, has stated that, lured by the advertisements made by the OP about its Residential scheme of Mittal Royale Orchards, its members made investment of their hard earned money in their project and applied for buying their villas. However the promises made in the brochure, etc. remained unfulfilled and as OP forced the allottees at the time of Executing Sale Deed to sign Maintenance Agreement and Indemnity Bond, which now they have challenged in this Complaint.
2. The grievances of the complainant are that the Water Treatment Plant, Sewerage Treatment Plant, Common Parking, Park, Common Area, Medical Facility, Boundary Wall, Electricity, Power Backup, Mutation, Iron Gate, Hand Rail, Bathroom mirrors, grass and trees, adequate street lights, provision for garbage removal, street roads, etc., were promised, but have not been provided.
3. Complainant have opposed the maintenance charges, collection of interest free maintenance Security paid by them Under Protest, which all amount to deficiency in service and are unfair trade practices adopted by the OP.
4. The Complainant has sought direction to remove deficiency in service, to waive maintenance Charges levied and withdraw the same. They have sought compensation of Rs. 54 Lakhs also.
5. Notice was issued to OP who appeared and contested their case. Both the parties filed their evidence by way of affidavit and both filed their written arguments also. For the purpose of brevity all the issues raised by the complainant in their complaint are not reproduced but submissions made by OP to each and every averment of complainant are dealt hereunder.
6. The Complaint is contested by the OP on the grounds that the Complainant has no locus standi as it has not been filed by a duly authorized person in accordance with Law. The authority of Mr. Vimal Monga, who has filed Complaint is not legally tenable and the Complainant has no right to sue the OP and the Complaint does not disclose any Cause of action. The complainant is trying to blackmail the OP to extract money in the guise of the alleged compensation from the OP without any deficiency of service on the part of the OP. Their defence is that the various so called Members of the Complainant have been neglecting to pay the Maintenance Charges in terms of their undertaking to pay the same. The Complainant has misled this Forum by concealing material facts and not disclosing that in the buyers agreement there is an Arbitration clause. The OP submitted that the complainant  has not disclosed that the OP issued the offer of possession letter to the members, which they could avail after making payment of the due amount but the said owners failed to take the possession in time and later paid holding charges as agreed under the buyers agreement to them, and OP provided services of maintaining the Villas owned by the said Buyers by incurring huge expenses of Watch and Ward staff and towards other utility services.
7. The OP submitted that various members have purchased the villas in semi – finished / bare shell conditions, which fact has been mentioned in the sale deed of each of the said type of buyers, thus every unit was to be got finished by the respective owners themselves as per their own requirement, thus various deficiencies as pointed out by the complainant are non-est.
8. The OP states that in the brochures relied upon by the Complainant it has been clearly mentioned that the same was tentative in nature and with an understanding entered into between the parties the same were duly changed.
9. The OP has further stated that the persons who have filed the present complaint are not even residing in the complex and that they are only investors. The said Members of the Complainant’s association have purchased and/or acquired the Villas for investment purposes which constitutes Commercial Purposes and as such they are not Consumers as defined under Section 2(1)(d) of the Consumer Protection Act and the Complaint is liable to be dismissed.
10. It is further asserted that OP has provided all facilities and amenities to the member of the Complainant association as promised, since all facilities as promised were not free of cost and the same were neither included in the consideration amount as mentioned in the buyers agreement nor the same were included in the sale deed, which was duly executed by the OP. The Club facility, Restaurant etc. were to be provided as per the agreed understanding between the OP and each of the villa Owner which was specifically mentioned in the Buyers Agreement executed by the respective owners of the villa. Further the same conditions were also accepted and agreed to by the members of the complainant association and has been mentioned in the sale deed as clause 8, which gives the sole option to the OP to construct the resort/hotel or club with facilities like Swimming Pool, Health Club, Restaurants etc., which was duly accepted by the members of the complainant association.
11. It is further stated that the members of the complainant association have themselves further agreed to get the electricity and water connection on their own from the appropriate authorities and waived their right to get the power back-up for which the OP did not charge any amount and the same has been clearly mentioned in clause 28 in the sale deed itself, it is further stated that clear title was transferred to the various Purchasers of the Villas, but such Owners are not the members of the complainant association. It is asserted by the OP that some of the members of the complainant association purchased the property/Villa after fully satisfying themselves in all respect and now after taking the possession of the property just to avoid to pay the maintenance charges qua his usages of the common facilities now wants to wriggle out from the agreement which they have executed with the OP out of their own free will and volition.
12. The OP further states that they had not made any promises or extracted monies from the member of the complainant association by making any false promise or representation. All amounts were demanded in terms of the documents executed by the members of the complainant association, who after reading/understanding the contents, thereof signed the documents and agreed to pay amount in term of the same, which in no manner can be said to be extracting monies and is a contractual obligation which the complainant has to fulfill. The various Villa Owners executed the said Agreements and other documents with open eyes and after fully understanding the same. They are estopped from challenging the same now. Even otherwise this Hon’ble Commission has no jurisdiction to go behind the agreed terms between the parties. 
13. It is stated by the OP that the water treatment plant was never promised to the members of the complainant, since each of them opted for doing their own bore well, which has been installed by them even otherwise the government water supply is already available in the complex and members of the complainant association can apply and obtain the connection from the government. OP further states that Clause 28 of the sale deed itself says that the OP is not bound to provide water supply to the Villa Buyers. It is further stated that each unit has been provided with separate water storage capacity. Similarly every villa has been provided with a sewerage connection and the sewerage waste is collected in a common pit, where the sewerage of entire complex is stored and after the common pit is filled the OP through its administrative staff gets it cleared, the same is to be done till the government does not provide the sewerage connection to the complex. The OP stated that similar practice has been done and is prevalent in entire DLF area, Sushant Lok, South City complexes, where the government has not provided the sewerage connection to the complex.
14. It is further stated by the OP that in none of its advertisement or brochure they ever stated that it will provide for sewerage treatment plant, the OP has denied that any common parking facility was promised or any children park was promised to be given to the members of the complainant association, In fact the Park has been prepared and provided to each of the member of the complainant association as a front Lawn & Rear lawn of their villas. The construction of the club was within the sole discretion of the OP as of now the entire complex has not been occupied by the residents. The OP stated that good medical hospitals are available in the area where the complex is situate. The medical facilities like Swasthya Gram by DS Group, Jyoti Medi Center, Dr. Ashok Yadav Clinic etc. exist in the vicinity, The alleged members of the complainant association are not aware of the exact facts, since none of them is residing in the said locality, and they have made false statements in the present complainant.
15. OP submitted that they have made boundary walls and the same is complete in entirety and they had no where written in any agreement that the boundary wall of the complex has to be of a particular design or style. It was never agreed that the they would provide power backup for which they can charge but supplying of electricity is a government department’s job, over which the OP has no control, thus the members of the complainant are and were free to obtain electricity connection from the government department, which they are doing, so the same cannot be said to be a grievance and deficiency in service.
16. The OP further states that they never refused the power backup facility. The same is available and for the said purpose they has also installed generator in the complex but for providing the power back up, the alleged members of the complainant association are liable to pay various charges including connection, capital charges, maintenance charges etc. to the OP and they have to be regular in the payment of the Maintenance Charges, it is only after that the power back-up can be provided.
17. As regards mutation, OP has stated that this Commission should take strict action against the President and other officials of the association for making perjured statements before this Commission. It is stated that in case the land entry would have been wrong then the sale deed would have been rejected by the Sub-Registrar and the mutation entries are done on the basis of the sale deed. The OP has denied that it charged any sum for getting mutation done in favour of the unit buyers. The OP has stated that in case the members of the complainant association wanted to challenge the legality of any document then they should have approached the Civil Courts, since consumer court has no jurisdiction over the issue.
18. The OP states that the Street lights have been provided adequately but the members of the complainant association have filed present complaint to avoid their liability of paying the maintenance charges, which they are bound to pay as per their contractual obligations. The OP stated that all street lights have been duly completed by the OP in the complex. The OP has further stated that if any service tax is levied by the government then the same shall be paid by the members of the complainant association. It has denied any shortcoming or deficiency in their project.
19. As regards car parking charges, OP has stated that the car parking charges for third car are correctly mentioned as Rs.1,000/- per  day and Rs.15,000/-per month as various owners started parking their cars on the road thereby blocking the ingress and egress of the other unit owners due to which after consulting with all the unit owners it was mutually decided to put this clause of heavy penalty on third car as two cars can easily be parked inside each unit and third car should not be parked on the road blocking the ingress and egress of other unit owners. Further the heavy penalty was also imposed for another reason that the friends and relatives of various unit owners used to park their vehicles in the complex so as to cause harassment to the other unit buyers, which decisions was a mutually agreed decision. The said clause also forms part of the sale deed as clause no. 12 (q) wherein each of the villa owner has specifically agreed to the same. The Unit Buyers admitted to the extent that in case maintenance charges are not paid than the unit owners may lose easement rights and other rights including right to use common area. All these rights are provided under the maintenance agreement to the OP and OP can take action in accordance with the maintenance agreement which the concerned Member of the complainant is bound to pay and which in no manner said to be arbitrary or unfair.
20. The OP further stressed that the compensation was provided under the Builder Buyers Agreement only and was related to handing over of the possession of the Villa, which is not the case in the present complaint and now after execution of the sale deed the said builder buyer agreement has come to an end and / or has been novated mutually, thus the alleged members of the complainant association are not entitled to any compensation as claimed by it or any of its members. The OP further contended that the complaint has not been filed within the period of limitation and the Complainant is not entitled to any relief.

All these allegations are denied by the Complainant in their Rejoinder.

20) While hearing Arguments on 14.10.2014, the Counsel for Complainant inspite of above submission of OP pointed out a number of deficiencies, which were disputed by the OP, as such this Commission appointed Mr. Rahul Sharma, Advocate as a Local Commissioner on an Application filed by the Complainant. The Local Commissioner visited the Spot in the presence of representatives of both the parties and submitted his Report dated 8-1-2015. The Complainant has not filed any objection to the same. However, the OP filed its objection to the said Report, but has not disputed any fact finding by the Local Commissioner. The Local Commissioner has reported that:

      i.      There existed 5 underground tanks of 21 ft (length) X 21 ft (breadth) X 23 ft (depth) (approx.) covered with stone slabs connected with underground pipes from individual villas for Sewerage System. However, the connection for unoccupied Villas and those, who did not clear maintenance charges were not opened. As per one occupant, Mrs. Kusum Tripathi, the said tanks were in existence since 2011.

       ii.       Water pipe line existed for untreated water and the OP was not obliged to supply treated water as per Agreement. Occupiers were required to apply for and get their own Water connections.

       iii.      Electricity Connections did exist for various Villas. On some poles Meters were installed.  As per OP, there existed only seven or eight connections. Owners were to get their own connections from Govt. supplying agency.

       iv.      There existed Boundary Wall on Eastern, Southern and Northern side of the complex. It was admitted by the OP that the Wall could not be constructed in a patch of 6 to 7 feet on the Western side due to dispute with the owners of the adjoining land. However, the same is secured by barbed wire.

       v.       Iron Gates did exist outside all villas, except Villa No. 14.

       vi.      Power Back up for 64 KVA did exist at site, there exist underground cables laid from the power back up facility upto each and every individual villas but not connected inside the villas (i.e. till the boundaries (outside) of each villa). It was told that the said facility was for Club, Common facilities like street light, water pump and was not meant for residents, but could be provided if they cleared their dues and paid its capital and other expenses.

       vii.     Fittings & Fixtures as per specification like Hand Railing and Mirror were reported to be missing in Villa Nos. B-14 and 9, but the same was disputed by the OP.

       viii.    The Local Commissioner found and reported that most of the villa were unoccupied and were in shambles. It was even difficult to go inside.

       ix.      The Local Commissioner found about 30 street lights in A & B Block. 32 Foundations for small lights were reported to be under maintenance.

21. The OP has raised a few issues in relation to the disputes. We would deal with the same one by one. It is averred that the OP has not executed any Agreement with the Complainant. Since all Agreements were executed between the OP and the Flat Buyers only, the Association has no locus standi to file the Complaint.  But under Section 2(1)(b)(ii) of the Act any Voluntary Consumer Association can file the complaint, as such the said objection is of no consequence and is held against the OP.
22. Next Objection raised by the OP is that the Complaint has been filed by Mr. Vimal Monga, who is not a flat buyer and as such is not competent to file the complaint. As per the OP, he can neither become member, nor the office bearer of the Association. On the same ground it is objected that there is no privity of contract between the OP and the said Mr. Vimal Monga. On the same ground, it is objected that under Clause 6.1 of the Constitution of Association as filed by the Complainant, it is the Secretary, who can file the Complaint and the President has not been authorized for the same. There seems to be some merit in these objections. We find from the records produced before us that the Villa No. B-3, which is claimed by Mr. Vimal Monga as being owned by him, is in fact owned by some, Mrs. Ramit Monga. Vimal Monga has neither taken possession of a Villa, nor is the Legal Heir / Attorney of such person as required under Term 1.1 of the Rules and Regulations of the Association. He has not entered into any purchase Agreement for any Villa which is substantiated by the fact that Mr. Monga has neither pleaded or provided such agreement. There is no provision to appoint any outsider as an office bearer in the said Rules.  The Complainant has not been able to satisfy us on this Objection and we have no hesitation in holding the same against the Complainant so the Complaint has not been filed by an authorised person as per law.
23. Next Objection raised by the OP is on the Territorial Jurisdiction of this Forum. It is further objected that as per Memorandum of Association of the Complainant, Clause 3, the Complainant can file Complaint only in Haryana. However, in view of the fact that the OP has its Registered Office in New Delhi and in view of the provisions of Section 11(2) of the Act, this Commission has the Jurisdiction to decide this dispute.
24. Next Objection raised by the OP is that the Complaint is hit by the Arbitration Agreement between the parties. We may refer to the law as has been laid down by the Hon’ble Supreme Court in re: Skypack Couriers vs Tata Chemicals reported as AIR 2000 S C 2008 and National Seeds Corporation vs M. Madhusudan Reddy reported as AIR 2012 S C 1160 and in view thereof, the objection does not stand. The Complaint is not hit by the Arbitration Clause.
25. The other objection raised by the OP is that there is no Deficiency in Service as stated in the Complaint. We have examined the records filed by both the parties. We are also convinced that in order to pay less/concessional price, some of the Villa Owners had opted for Semi finished Villas. As per Schedule filed by the OP, SEVEN Villa Buyers out of ELEVEN members of the Complainant have purchased the Villas in Semi Finished Stage. Such buyers cannot raise any hue and cry. The said stand of the OP has not been disputed by the Complainant. This stand also finds support from the Report of the Local Commissioner appointed by this Commission.
26. We find from the records and report of Local Commissioner that the Complainant has not been able to point out any deficiency in service even at the time of the said inspection. We have also perused the photographs submitted by the complainant as well as by Local Commissioner and observe that complex seems to be well maintained by OP. It is a pity that the Complainant, which has about 11 members as shown on record, has not been able to show that any of its members has ever fully cleared their maintenance charges. The Complainant wants the OP to maintain the amenities without payment of charges thereof, which seems to be unjust and inequitable. He who seeks equity, must do Equity, is the cardinal principle and Rule of Natural Justice.  We have no hesitation in returning a finding in favour of the OP and against the Complainant.
27. We can not lose sight of the fact that none of the so called members of the Complainant Association has been able to show any deficiency in service in any Villa occupied by him / her. Even Mr. Vimal Monga has not been able to show any deficiency even in Villa No. B-3 which is in the name of Ramit Monga which Mr. Vimal Monga claims to be his villa and states to have occupied as per the address submitted by him to the Registrar of Societies in the Memorandum of Association filed by him. Even as per the Affidavits filed by him in this Commission, he has stated himself to be residing in Property No. 88-C, Pocket – A, Sukhdev Vihar, New Delhi. This fact forces us to accept the plea of the OP that the so called members of the Complainant Association are only Villa Buyers for investment purposes. The facts in this case also speak for itself. The Sale Deeds executed by the OP, the copies whereof are on record, show that the Villas were sold between 2005 to 2008. The OP offered the Villas for taking possession to various flat Buyers during 2005 to 2008. It is strange that the said Villa Owners / Prospective Buyers do not occupy the same till 2015, when the Local Commissioner visits the said site. It is a period of about 10 years.  This fact is sufficient to hold that such Buyers have purchased those villas only for sale when the prices rises. Even otherwise, as per Term in the Sale Deed executed between the Villa Buyer and the OP, they have agreed as follows:

     “17.  That after the execution of this Sale deed, all understandings, agreements, advertisements, brochures, hoardings, including but not limited to the agreement to sell already executed between the vendor and the vendee shall come to an end and the both shall only be governed by the terms of this Sale Deed and the Maintenance Agreement.”

28. We have to look at this from another angle also the Complainant filed this Complaint seeking the waiver of maintenance agreement and charges and directions to withdraw the same. Admittedly the OP and various Villa Buyers have executed Buyers Agreements, Sale deeds, etc., which contain the terms mutually binding on them. In terms of the said Agreements, the various Villa Buyers are bound to pay the Charges agreed by them. Here admittedly, the various members of the Complainant association are continuously in default of the payment of the charges as is reflected from the statement of maintenance charges outstanding against these members of RWA filed by OP which amounts to Rs. 70.02 lacs inclusive of interest on late payment till 30.09.2013.
29. The Complainant seems to claim the waiver and withdrawal thereof without assigning any reason and on the face of it, the Complaint seems to have been motivated by an intention not to pay the charges, which is wholly inequitable and can not be sustained. Even otherwise,
30. The Complainant has sought the cancellation of maintenance Agreements executed by its members on the plea that the same were executed by them under duress and under protest. No facts relevant thereto have been shown and no evidence in support thereof has been adduced to that effect otherwise also this Commission has no jurisdiction to cancel the same. The Complainant has miserably failed to prove his case and there appears to be no deficiency in providing services by the OP rather complainant’s association’s members have failed to pay the maintenance charges without which it is difficult to maintain the complex to their aspirations in future in order to live comfortable and luxurious life.
31. In view of the above discussion, the Complaint is without merit and is dismissed. No order as to costs.
32. Copy of this order be sent to the parties free of costs as per law and thereafter the file be consigned to Record Room.

(N P KAUSHIK)

MEMBER (JUDICIAL)

 

 

(S C JAIN)

MEMBER