BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.333 of 2016
Date of Instt. 28.07.2016
Date of Decision: 10.10.2017
Kings Garden Residents Welfare Society, regd. Jalandhar, Hoshiarpur Highway, Nangal Shama, Jalandhar through its Vice President Sukhdev Singh son of Hazara Singh resident of House No.B-403, 3rd Floor, Kings Garden, Hans Mukhi Flat, Hoshiarpur Road, Nangal Shama, Jalandhar.
..........Complainant
Versus
1. Horizon Building Solutions Pvt. Ltd. Registered Office 39-G, Pocket-A-1, Mayur Vihar, Phase-III, Delhi-110096, through its Managing Director/Authorized representative of the company.
2. Horizon Building Solutions Pvt. Ltd. D43 Sector-6, Noida- 201301 (UP) through its Executive Director Sh. Satish Bajaja.
3. Horizon Building Solutions Pvt. Ltd. Registered Office A-30, Sector-5, Noida-201301, Distt. Gautam Budh Nagar, UP.
4. Horizon Building Solutions Pvt. Ltd. at King's Garden, Village Nangal Shama, Hoshiarpur Highway, Jalandhar through its Manager (Administration) Sh. Tarun Gogia son of RS Gogia resident of Nangal Shama Chowk, Hoshiarpur Highway, Jalandhar.
….….… Opposite parties
Complaint Under the Consumer Protection Act.
Before: Sh. Karnail Singh (President)
Sh. Parminder Sharma (Member)
Present: Sh. Karan Kalia, Adv Counsel for the complainant.
Sh. Rajneesh Khanna, Adv Counsel for the OP No.1 to 4.
Order
Karnail Singh (President)
1. This complaint filed by the Welfare Society through its Vice President Sukhdev Singh, wherein alleged that the complainant society was registered for the welfare of the members/flat owners/allottees and for charitable purpose of the members/flat owners of the locality of the society known as Kings Garden Residents Welfare Society and vide resolution dated 30.07.2016, Sh. Sukhdev Singh, Vice President was authorized to file the present complaint.
2. That the OP No.1 is doing the business of carving out and raising the flats in different parts of cities of India. OP No.1 has made the construction of the flats known as Hansmukhi flats (Block A and B) consisting of 112 flats. The members of the society have purchased the flats from the year 2010 onwards. The owners and occupants of the flats of the said society have formed up the society to look after the interest of the residents of the flats. That as per clause 12(x) of the terms and conditions of Allotment/Agreement executed between the OP No.1 and allottee “it shall be mandatory for the allottee/residents to form/register a society for the purpose of maintenance of the buildings”. The OP No.1 having its registered office at Mayur Vihar, Delhi and OP No.2 and 3 are Executive Director and authorized representative of the OP No.1. The OP No.4 is authorized administrative Manager, who used to look after the day to day proceedings of the said towers and flats. At the time of making the allotment to the allottees/occupants/owners, the OPs assured and admitted that they would provide amenities as mentioned in their brochure at the time of making allotment to the residents/owners/allottees of the society and the members of complainant society. The OPs promised to provide to the flat owners amenities such as jogging track, tennis court, RWS Club office, provision of TV-Telecom-internet and intercom, lightening arresters, basket ball courts. But all these amenities and some others were not provided to the members/owners of the society even after repeated requests. The amenities promised by the OPs were mentioned in their brochure provided to the occupants of the flats/members of the society at the time of making the purchase of the flats. The said brochure is attached herewith.
3. That the OPs promised to provide some amenities, which are not up to the mark such as:-
(i) The Gym which has near to no machine and it is not functional.
(ii) Car parking which is not properly maintained.
(iii) Swimming pool, in the space for which the OPs intend to construct another building by curtailing the amenities.
(iv) Provision of fire safety.
(v) High speed lift for Block-B as Block-B has only low speed lift.
(vi) Provisions for security, cleaning, rain harvesting, common area lighting, water supply, power backup, paint of the buildings and many other amenities, which are mentioned in the brochure attached herewith.
It is pertinent to mention here that the design of the car parking in the basement constructed by the OPs in Block-A does not look approved. It is not appropriate for parking the cars as the entrance and exit are too risky for being used. The complainant society has on various occasions asked the OPs to provide them with the copy of the sanctioned site plan by a competent authority of the building. In spite of that the OP did not provide the same. The OPs have received Rs.20,000/- for 2 BHK and Rs.30,000/- for 3BHK per flat from the flat owners/members of the society, under the head Interest Free Maintenance Security at the time of sale of the flats. But the maintenance provided by the OPs was not up to the mark and not as promised. These funds were supposed to be kept as fixed deposits and interest income on these FDRs was to be used towards maintenance for two years and after two years, the complex was to be handed over to the society alongwith the said funds. The complainant society after being registered has been making repeated request to the OPs to handover the possession of the complex and the funds. However, for one reason or the other, the OPs have avoided to handover the possession of the complex for the purpose of maintenance and security as well as the above mentioned funds. The OPs also did not give any details of the funds collected by them neither did they provide the details of FDRs on being requested so. The above mentioned amount of Rs.20,000/- for 2BHK and Rs.30,000/- for 3BHK per flat collected/charged by the OPs from each flat owner as maintenance charges was to be made into FDR as promised by the OPs at the time of making the sale of the flats but it has not been so done and the said amount has been used by the OPs in their own business. That in addition to the above mentioned amount, the OPs also collected Rs.40,000/- from every allottee of the building for providing proper car parking. But as mentioned above, the car parking facility in Block-A is not proper rather very risky as the entrance and exit of the said parking is not properly constructed and does not seem to be an approved site plan.
4. That the complainant society has in various meetings and through letters dated 19.04.2016, 24.04.2016, 11.06.2016, 25.06.2016, 11.07.2016 and through a correspondence letter dated 23.04.2016 have asked the OPs to handover the said funds and also provide the details of the FDRs of the Interest Free Maintenance Security and also provide copy of the site plan of Block A & B and also provide copies of the balance sheets of the last three years and completion certificate from MCJ and PSPCL Electricity documents and also provide maintenance and facilities as were promised during the purchase of the flats and in various meeting. As per Clause 12.07 of the terms and conditions of allotment/agreement between the OP and the members of the society of the flat, the company was to maintain the complex till the maintenance is handed over to the allottees/society or for a period of one year from the date of completion of the said complex or said apartment, whichever is earlier but after the above said period, even on the repeated demand of the complainant society, the OPs did not handover the maintenance of the complex to the complainant society/allottes. The electric meters installed by the OP in the said complex have been placed in small room in the basement and many residents have complained that they are getting higher bills and suspect pilferage of electricity. Despite repeated requests of the complainant society to place the meters, outside as per Punjab Government instructions, the OPs did not take any precautions as such negligence can lead to serious accident and cause damages to the building and to the inhabitants. On 23.04.2016, in this regard, the complainant society served a notice to the OPs to provide all the amenities to the members/occupants of the complainant society and to handover the possession of the complex for the maintenance purpose to the complainant society, but the OPs have failed to handover the possession of the complex to the complainant society. The complainant society is waiting for favourable response from the OPs till today but the OPs are putting it off on one pretext or another without assigning any reason, which is apparently unfair trade practice and deficiency in service on the part of the OPs and as such necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted with costs and OPs may kindly be directed to provide all the amenities as mentioned in the fore going para of the complaint and to handover the possession of the complex to the complainant society and to pay Rs.5,00,000/- as damages alongwith the amount i.e. Rs.20,000/- for 2BHK and Rs.30,000/- for 3BHK charged from each and every member of the complainant society taken by the OPs under the head IFMS alongwith 12% interest on the said amount and also Rs.40,000/- taken by the OP from every member of the complainant society for construction of the parking and Rs.33,000/- as litigation expenses or other relief, which this Forum may deems fit.
5. Notice of the complaint was given to the OPs and accordingly all the OPs appeared through their counsel and filed written reply, whereby contested the complaint by taking preliminary objections that the present complaint against the OP is not maintainable and even the complainant has concealed the true material facts from the Forum. The true facts of the case are that the OP No.1 to 3 is engaged in the business of construction and development of residential, institutional and commercial building within India. The OP No.1 to 3 have developed a residential project known as Kings Garden over the land situated Hoshiarpur Road, Nangal Shama, Jalandhar by constructed Block-A and Block-B in the area of Hoshiarpur Road, Jalandhar in the year 2010. The OP No.1 to 3 have in Block-A has constructed 83 Flats and two shops including basement, plus ground floor plus 6 stories and in Block-B the OP No.1 to 3 has constructed 28 flats ground floor plus 6 stories. In the area of Block-A each flat is having different areas, which include 2BHK and 3BHK and in the area of Block-B, each flat is of 2BHK. The OP No.1 to 3 have completed the constructions of the flats of the Block-A and B and handed over the possession of the said flats of Block A and B to the different owners/occupants and have also executed the sale deeds in favour of the respective purchaser/allottees of the flats in Block-A and Block-B and handed over the possession of the said flats to them at a different and respective times since 2010 on words. The OP No.1 to 3 at the time of selling the said flats to the different purchaser have also provided many amenities to them in terms of the agreement executed between the OP No.1 to 3 and the complainant as per the allotment letter. As per the clause 12 sub clause (I), sub clause (iii), sub clause (v), sub clause (vi), sub clause (vii), sub clause (x) and Clause 14 sub clause (vii) of the allotment agreement, it was agreed between the complainant and the OP No.1 to 3 to provide the amenities. As per the terms and conditions, the flat owners are bound to pay maintenance security and maintenance charges and failing which, the said amenities can be stopped by the OPs. On merits, the allegations as made in the complaint are categorically denied and lastly prayed that the complaint of the complainant is without merit and the same may be dismissed.
6. In order to prove the case of the complainant, the representative of the complainant tendered into evidence his duly sworn affidavit Ex.C1 alongwith certain documents Ex.C2 to Ex.C57 and closed the evidence.
7. Similarly, the counsel for the OPs tendered into evidence duly sworn affidavit Ex.OP/A alongwith some documents Ex.OP1 to Ex.O67 and closed the evidence on behalf of the OPs.
8. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.
9. After considering the respective submission of each party, we find that the factum in regard to sale of constructed flats to the members of the complainant society is not in dispute and even we like to make it clear that there is no dispute in regard to construction of the flats rather the dispute as alleged by the complainant society is only for not providing the basic amenities, which are agreed by the OP, at the time of allotment of the flats as well as the said amenities are mentioned in the brochure and copy of the brochure is available on the file Ex.C9 and there is an other most important document is term and condition of the allotment/agreement Ex.C20, no doubt both the parties have brought on the file number of documents as the complainant has tendered into evidence Ex.C2 to Ex.C57, whereas the OPs tendered into evidence some documents Ex.OP1 to Ex.OP 67, but we will discuss only relevant documents because the entire dispute is revolving around the brochure and agreement/term and condition settled between the parties, we find that the agreed amenities have been mentioned in the brochure Ex.C9 and how it will be implicated is further elaborated in the term and condition of the allotment/ agreement Ex.C20, in Clause 12 under the heading of 'Maintenance' as well as in Clause 14 under heading of 'Possession'. In order to reach a right conclusion, it is necessary to keep in mind the basic amenities and facilities, whatsoever agreed by the OP in the brochure is to be taken into consideration and accordingly, we find that apart from the amenities and specification for construction of flat, the other general facilities/amenities, which are required to be given are:-
(i) Sufficient open/covered parking space.
(ii) Full length jogging track.
(iii) Swimming pool.
(iv) Beautiful Landscaping.
(v) Power back up.
(vi) Entry from Highway.
The above said amenities are agreed in the brochure to be provided to the flat owners, after completion of the work of complex as well as at the time of handing over the possession and then within one year, the maintenance of some of the above amenities will be handed over to the society, which is to be formed by the owner of the flat but in this case, the OP miserably failed to establish on the file, on which date, the entire complex was ready for delivery of the possession to the occupants/owner of the flats, it is not possible to handover the possession of flat only 10 occupants, then how they can form a society, society can only be formed by the owner of the flats, when all the owners of the flat get their respective possession. So, accordingly, the society was formed and it was got registered on 21.03.2014 and it is a compliance of Clause 12(x) of the agreement Ex.C20 and thereafter, the society sent numerous letter, which are Ex.C10 to Ex.C18 to the OP to handover the possession of the complex for maintenance purpose, but for the best known reason, the OP has miserably failed to handover the possession of the said complex to the society, simply on the pretext that the society has spent huge amount on the maintenance but this ground of the OP is not sustainable in the law because as per agreement, the possession of the complex for maintenance purpose will be handed over to the society, when all the occupants get the possession of the respective flats but there is no specific date or document has brought on the file by the OP to establish that on which date the possession of the entire flats were given to the respective owner, if so then, it is the fault of the OP not of the complainant society.
10. As per version of the complainant, the OP has collected an amount of Rs.20,000/- from flat owner having 2BHK and Rs.30,000/- from owner of the flat having 3BHK and this amount is required to be deposited in the shape of fix deposit and its interest whatsoever incurred will be used for the maintenance purpose, but the OP is not ready to make the account for the said amount. No doubt, the complainant has enumerates so many amenities in the complaint but we are only concerned with the amenities/facilities, whatsoever mentioned in the brochure Ex.C9 because as per agreement or settlement between the parties, only those facilities/amenities are to be given to the flat owners, which are agreed and mentioned in the brochure, no doubt in order to establish that the said amenities have not been properly provided to the society by the OPs, for that purpose, the complainant has brought on the file certain photographs, which are Ex.C33 to Ex.57 and these photographs have been contradicted by the OPs by bringing counter photographs Ex.O24 to Ex.O65, we have gone through the photographs, brought on the file by the OP, which does not disclose or prove that the proper amenities have been provided to the society or not, whereas the photographs brought on the file by the OP itself established that the amenities/facilities are not properly provided to the complainant in letter and spirit as agreed between the parties as per terms and conditions/agreement. It is necessary to mention here that the facility/amenity is to be provided by the OP to the society as per the terms and conditions as mentioned in the para No.12 under the heading of 'Maintenance' and whatsoever maintenance charges is to be paid by each flat owner to the OP is required to pay and there will be no excuse for non payment of said charges and if, the charges are already paid, then the OPs are required to provide proper amenities and facilities to the complainant society. We have also gone through the Clause 12 sub clause (I), sub clause (iii), sub clause (v), sub clause (vi), sub clause (vii), sub clause (x) and Clause 14 sub clause (vii) of the term and condition/agreement and find that the parties are bound by these terms and conditions and they have to follow the said terms and conditions and accordingly in the light of brochure as well as terms and conditions, we came to conclusion that the complainant has established on the file that the amenities are not provided to the complainant society by the OP. As per term of the agreement executed between the parties, if so then, a direction is required to be given to the OP to properly provide amenities to the complainant society as elaborated in the brochure and further following the term of the agreement and also handed over the possession of the complex for maintenance purpose.
11. In the light of above detailed discussion, the complaint of the complainant is partly accepted and OPs are directed to provide proper amenities to the complainant society as mentioned in the brochure Ex.C9 by following the term and condition of the agreement Ex.C20 and OPs are further directed to handover the possession of the complex for maintenance purpose to the society alongwith the FDR deposit amount if any to the society within one month from the date of receipt of the copy of order and further all the members of the society are also required to deposit the maintenance charges if any due and accordingly ordered and further OPs are directed to pay a compensation of Rs.1,00,000/- to the society for mental harassment to the members of the society and further OPs are directed to pay litigation expenses of Rs.20,000/-. The entire compliance be made within one month from the date of receipt of the copy of order. Complaint could not be decided within stipulated time frame due to rush of work.
12. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Parminder Sharma Karnail Singh
10.10.2017 Member President
