DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.431 of 2015
Date of institution: 27.08.2015 Date of decision : 29.08.2016
Lt. Col. Manjit Kumar son of Babu Ram, B2 4005, Paras Panorama, Opposite Gulmohar Complex, Kharar Ludhiana Road, District SAS Nagar (Mohali) Punjab.
……..Complainant
Versus
1. M/s. Dynasty Buildwell Private Limited, C/o Paras Buildtech Private Limited through Harender Nagar, Director, 11th Floor, Paras Twin Towers, Tower-B, Golf Course Road, Sector 54, Gurgaon, Haryana 122002.
2. M/s. Dynasty Buildwell Private Limited, C/o Paras Buildtech Private Limited through Nilam Nagar, Director, 11th Floor, Paras Twin Towers, Tower-B, Golf Course Road, Sector 54, Gurgaon, Haryana 122002.
3. M/s. Dynasty Buildwell Private Limited, C/o Paras Buildtech Private Limited, through Aman Nagar Director, 11th Floor, Paras Twin Towers, Tower-B, Golf Course Road, Sector 54, Gurgaon, Haryana 122002.
4. M/s. Dynasty Buildwell Private Limited, C/o Paras Buildtech Private Limited, through Rajesh Koul, Assistant Vice President Sales, 11th Floor, Paras Twin Towers, Tower-B, Golf Course Road, Sector 54, Gurgaon, Haryana 122002.
5. M/s. Dynasty Buildwell Private Limited, C/o Paras Buildtech Private Limited through Reena Gupta, 11th Floor, Paras Twin Towers, Tower-B, Golf Course Road, Sector 54, Gurgaon, Haryana 122002.
6. M/s. Dynasty Buildwell Private Limited, C/o Paras Buildtech Private Limited through Anjoo Gogia, Senior Vice President Sales, 11th Floor, Paras Twin Towers, Tower-B, Golf Course Road, Sector 54, Gurgaon, Haryana 122002.
7. M/s. Dynasty Buildwell Private Limited, C/o Paras Buildtech Private Limited through Paramveer Singh 11th Floor, Paras Twin Towers, Tower-B, Golf Course Road, Sector 54, Gurgaon, Haryana 122002.
8. Incharge M/s. Dynasty Buildwell Private Limited C/o Paras Buildtech Private Limited, Paras Panorama Opposite Gulmohar Complex, Kharar Ludhiana Road, District SAS Nagar, Mohali, Punjab.
………. Opposite Parties
Complaint under Sections 12 to 14
of the Consumer Protection Act
Quorum
Sh. Ajit Pal Singh Rajput, President
Mrs. R.K. Aulakh, Member.
Present: Complainant in person.
Shri P.K. Rana, counsel for the OPs.
ORDER
By Ajit Pal Singh Rajput, President
Complainant, Lt. Col. Manjit Kumar son of Babu Ram, B2 4005, Paras Panorama, Opposite Gulmohar Complex, Kharar Ludhiana Road, District SAS Nagar (Mohali) Punjab, has filed this complaint against the Opposite Parties (hereinafter referred to as the OPs) under Sections 12 to 14 of the Consumer Protection Act. The brief facts of the complaint are as under:
The complainant who is retired army Lt. Colonel had booked Flat No. BII 4005 in Paras Panorama, Mohali, in the project of the OPs, in his name on 28.09.2011 under construction linked plan. As per para No.36 of buyers agreement the OPs had agreed to handover the flat in December, 2012. After making 100% payment of the flat to the OPs and submitting the affidavits and agreement of maintenance which the OPs forced him to do, the complainant took over possession of the flat from the OPs. The possession of the flat has been given to the complainant in January, 2015 with delay of 25 months. As per Para No.37 of the agreement, the OPs were supposed to pay Rs.5/- per sq. ft. per month as penalty for delay but the OPs had refused to pay the same on the ground that the complainant had paid the installments with delay. However, the complainant has made the timely payments as per construction linked plan. Due to delay in possession, the complainant had to stay on rent for the period of delay. The construction work done by the OPs is of poor quality as the doors are broken with patches, wooden flooring in master bed room at a low level to the main corridor; quality of taps and mixtures is not upto the standard given in the agreement. The quality of electric fittings, sliding doors and widows, tiles is also very poor. The OPs had also promised to provide two lifts/escalators but only one is existing on the ground. The drainage system of Tower B2 is pathetic; the sewerage treatment plant is located near to the living areas which create air pollution. Car parking has been allotted to A2 tower residents below B2 tower. There is no space for open car parking. The act and conduct of the OPs shows clear cut unfair trade practice and deficiency in service on their part. Hence this complaint for giving directions to the OPs to pay him interest to the tune of Rs.7,20,000/- on the deposited amount of Rs.40.00 lacs; rent to the tune of Rs.3,60,000/- @ Rs.15,000/- per month for 24 months; Rs.1,00,000/- for mental harassment and agony; covered car parking be provided to the complainant; second lift should be provided and Sewerage Treatment Plant should be relocated from Block B2.
2. The complaint is contested by the OPs by filing joint written reply, in which they raised certain preliminary objections, inter alia, that the Directors and officials of the company have no concern whatsoever with the present complaint as no allegation has been made out against them. The complainant has not approached this Forum with clean hands and has suppressed material facts. Offer in possession of the flat was given to the complainant vide letters dated 18.11.2014 and 19.11.2014. The possession was delivered to the complainant on 08.12.2014. The complainant had duly signed the possession certificate dated 17.01.2015 and NOC/undertaking confirming possession by the allottee for registration dated 08.12.2014 in the shape of affidavit duly sworn and signed by the complainant. As per Clause 19 of the agreement, the allottee is liable to regularly pay the company or its nominated maintenance agency the maintenance and service charges for upkeep, cleanliness and general maintenance of the building from the date the building is complete. As per Clause 56 of the agreement, this Forum does not have the territorial jurisdiction to entertain the present complaint. This Forum also does not have the jurisdiction to entertain and try the present complaint as the allegations made in the complaint are of complex and civil nature.
On merits, the OPs have pleaded that the flat in question was booked by the complainant on 28.09.2011 under construction linked plan. The OPs were to handover the possession by December, 2012 with additional grace period of 6 months subject to force majeure conditions, provided all the amounts due and payable by the intending allottee have been paid in time. The OPs issued last demand letter dated 19.11.2014 to the complainant alongwith offer of possession. The complainant made payment of Rs.2,15,948/- on 08.12.2014 and interest free maintenance security was also deposited by the complainant on 08.12.2014 vide cheque Nos.754897 and 754898. The complainant submitted NOC/undertaking confirming possession on 08.12.2014. As per the NOC/Undertaking complainant himself satisfied with the quality, specifications, fitting, fixtures of the flat and found the same in order as per builder buyer agreement. The complainant assured that he was completely satisfied with the quality of specifications of unit and he shall not make any claim or complaint and undertook to indemnify the developer/maintenance agency for the same. In this regard the complainant sworn two affidavits on 08.12.2014 and submitted the same to the OPs. The complainant also signed the possession certificate after verifying the quality, specifications, fittings, fixtures on 17.01.2015. The possession was handed over to the complainant on 08.12.2014 and since then he is living in the apartment. The OPs are not liable to pay Rs.5/- per sq. ft. per month penalty as delay charges as the last payment was made by the complainant on 08.12.2014 and possession of the flat was delivered to him on the same day. No excess payment has been made by the complainant as the complainant has calculated the service tax @ 2.5% whereas the statutory service tax charged by the OPs is @ 2.575% as shown in the letter dated 17.10.2011. The OPs have denied that the construction work is of very poor quality. The OPs have denied the defects/quality pointed out by the complainant in the doors, wooden flooring, taps and mixtures, electric fittings, sliding doors and windows, tiles, drainage system, Sewage Treatment Plan and car parking etc. Denying any deficiency in service or unfair trade practice on their part, the OPs have sought dismissal of the complaint.
3. In order to prove the case the complainant tendered in evidence his affidavit Ex.CW-1/1; copies of agreement to sell Ex. C-1; NOC Ex.C-2; possession certificate Ex.C-3; letter. Ex C-4; letters dated 07.07.2013 and 16.03.2014 Ex.C-5 and Ex.C-6; E-mail Ex.C-7; payment schedule Ex.C-8; Annexure 1 Ex.C-9; inspection report Ex.C-10; original photographs Ex.C-11; Annexcure-1 Ex.C-12; letter Ex.C-13; rent agreement Ex. C-14; letter dated 30.11.2011 Ex C-15; page of brochure Ex C-16 . In rebuttal the OPs tendered in evidence affidavit dated 18.02.2016 of M.K. Tripathi, their authorized signatory Ex.OP-1/1; copies of resolution Ex.OP-1/2; map Ex. OP-1/3; demand letter dated 19.11.2014 Ex.OP-1/4; offer of possession dated 18.11.2014 Ex.OP-1/5; demand letter dated 05.03.2014 Ex.OP-1/6; receipt dated 11.06.2012 along with courier receipt Ex.OP-1/7; cheque dated 08.06.12 Ex.OP-1/8; demand letter dated 30.05.2012 Ex.OP-1/9; receipt dated 16.05.2012 along with courtier receipt Ex.OP-1/10; cheque dated 07.05.2012 Ex.OP-1/11; demand letter dated 30.04.2012 Ex.OP-1/12; demand letter dated 27.03.2012 along with courier receipt Ex.OP-1/13; reminder-1 Ex.OP-1/14; cheques Ex.OP-1/15 and Ex.OP-1/16; receipt dated 20.03.2012 Ex.OP-1/17; receipt dated 17.02.2012 along with courier receipt Ex.OP-1/18; cheque dated 07.02.2012 Ex.OP-1/19; demand letter along with courier receipt Ex.OP-1/20; receipt dated 16.01.2012 along with courier receipt Ex.OP-1/21; demand letter dated 27.12.2011 along with courier receipt Ex.OP-1/22; receipt dated 16.01.2012 along with courier receipt Ex.OP-1/23; letter dated 17.10.2011 Ex.OP-1/24; receipt dated 16.11.2011 along with courier receipt Ex.OP-1/25; letter dated 30.11.2011 Ex.OP-1/26.
5. We have gone through the pleadings, evidence and written arguments of the parties and heard the oral submissions, addressed by the learned counsel for the parties.
6. At the very outset, learned counsel for the OPs has submitted that the complainant is not a consumer. Learned counsel for the OPs has made a submission that before proceeding to decide the complaint on merits, the issue with regard to the complainant being a consumer may be decided first. On the other hand, the complainant has objected to the submissions of learned counsel for the Ops and stated that the present complaint deserves to be decided on merits as he is a consumer of the OPs.
7. In this regard, it has come to our notice that the Hon’ble National Commission in a latest case titled as Harpal Arya Vs. Housing Board, Haryana, Revision Petition No.3338 of 2007, decided on 04.01.2016 had observed in Para No.15 as under:
“Thus, from the aforesaid documents, it is manifestly clear that petitioner had executed the Hire Purchase Tenancy Agreement with the respondent and in pursuance thereof, he had also taken possession of house on 27.10.2004. Further as per possession certificate, it is clear, that petitioner had taken the possession, without any pre conditions. Now after getting the possession, it does not lie in the mouth of the petitioner to state that house is not in a habitable condition. Once petitioner, had taken the possession with open eyes and without any pre-conditions, he cease to be a consumer. The consumer complaint was filed on 25.05.2005, that is, after about seven months of taking over the possession of the house. Therefore, on the face of it petitioner was not a ‘consumer’ at the time of filing of the complaint, since there was no privity of contract between the parties. Therefore, complaint is liable to be dismissed on this ground alone.”
8. In the present case also the complainant had taken over the possession in January, 2015 without any pre-conditions and had filed the present case thereafter. It is established from the material placed on record that the complainant had duly signed the possession certificate dated 17.01.2015 and NOC/undertaking confirming possession by the allottee for registration dated 08.12.2014 in the shape of affidavit duly sworn and signed by the complainant. Hence the complainant ceases to be a consumer, in view of the observations of the Hon’ble National Commission in case titled as Harpal Arya Vs. Housing Board, Haryana (supra).
9. Accordingly, in view of our aforesaid discussion, we do not find it appropriate to adjudicate the present complaint on merits. However, the complainant is granted the liberty to approach the appropriate Court of law/tribunal/authority and may be entitled to the benefit of the observations of the Supreme Court in Laxmi Engineering Works v. P.S.G. Industrial Institute II(1995) CPJ 1 (SC) : 1995 3 SCC 583, for the purpose of exclusion of time spent before this Forum. The present complaint is hereby dismissed, in view of our aforementioned observation. In case the complainant requires any documents the same be returned, under receipt and a copy of the same be retained. Parties to bear the cost.
The arguments on the complaint were heard on 16.08.2016 and the order was reserved. Now the order be communicated to the parties. Copy of the order be sent to the parties free of cost and thereafter the file be consigned to the record room.
Pronounced
Dated: 29.08.2016
(A.P.S.Rajput)
President
(Mrs. R.K. Aulakh)
Member
