Haryana

Kurukshetra

194/2016

Neelam Rani - Complainant(s)

Versus

Metro Faclity - Opp.Party(s)

Sandeep Madan

18 Feb 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KURUKSHETRA.

 

Complaint no.194/16.

Date of instt.13.7.16. 

                                               Date of order: 18.02.2022.

 

1. Neelam Rani wife of Kanwar Singh, resident of House No.328, Block “D” Jindal Global City, Sector-29, Umri, Kurukshetra.
2. Paramjeet Kaur wife of Surmukh Singh, resident of House No.240,Block C, Jindal Global City, Sector-29, Umri, Kurukshetra.
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                             Versus

1. Metro Facility Management Private Limited, D.S.M. 609-610, 6^th Floor, DLF Tower, Shivaji Marg,(Najafgarh Road),Moti Nagar, New Delhi.
2. Jindal Reality Private Limited, D.S.M. 609-610, 6^th Floor, DLF Tower, Shivaji Marg, (Najafgarh Road), Moti Nagar, New Delhi.
3. Project Manager, Metro Facility Management Private Lmited, Galferia Jindal Global City, Sector-29, Kurukshetra.

………Opposite parties.

 

                    Complaint under section 12 of Consumer Protection Act.         

                                                                                                       

Before         :        Mrs.NeelamKashyap………. President. 

                    Ms.Neelam……… Member.

                    Sh.Issam Singh Sagwal………Member.

 

Present :      Sh. Sandeep Madan, Advocate for complainant.

                    Sh. Raman Bansal, Advocate for OPs.

                      

 

ORDER

 

                    This is a complaint under Section 12 of the Consumer Protection Act, 1986 moved by complainants Neelam Rani & another against Metro Facility Management Private Limited and others, the opposite parties.

2.                It is stated in the complaint that the  OP No.2 is the developer and has started a plan for development of the residential colony in District Kurukshetra and is developing the same in the name and style of Jindal Global City, now called as Kurukshetra Global City, Sector-29, Kurukshetra as per norms of the District Town and Country Planning Department, Haryana vide license No.288 of 2007 dated 29.12.2007. OP No.2 put the plots/houses for sale and the complainants purchased plots in the above said colony for constructing residential houses which allured by advertisements and purchase plots No.D-328 and C-240 respectively.  There are 755 plots, shopping mall, commercial sites, as per zoning plan approved by DTCP, Panchkula vide letter No.1547 dated 1.4.2008, which is carved out in the 88.787 acres of land. Plot No.D-328 was initially allotted to one Manjeet Mor in the year, 2009 and a plot buyers agreement with regard to the plot No.D-328 was executed by her. Later on Manjeet Mor sold the plot to Yogesh Gupta and a conveyance deed dated 22.2.2012 was executed between said Yogesh Gupta and OP No.1. A maintenance and service agreement was also executed between them. The complainant No.1 purchased the said plot from Yogesh Gupta vide sale deed dated 29.4.2013. Even after the execution of sale deed in favour of complainant No.1, the OP No.2 never issued any allotment letter or conveyance deed or transfer letter in favour of complainant No.1. After registration of sale deed, the complainant No.1 has raised construction. Afterwards, complainant No.1 was pressurized to clear some outstanding dues of Yogesh Gupta previous owner which was claimed as Rs.3500/- though no invoices were shown at that time. The complainant No.1 deposited the amount vide receipt No.C001443 dated 29.10.2013. As per complainant No.2 is concerned, conveyance deed, buyer’s agreement dated 29.1.2011 was executed between him and OP No.2. A maintenance and service agreement was executed between him and Op No.1. He raised the construction and lastly paid the amount of maintenance charges vide receipt No.CC001846 dated 20.5.2014. Now to utmost surprise of complainant No.1, she received a invoice No.CV008743 dated 1.6.2016 in which OP No.1 claimed common area maintenance charges @ Rs.2.750 per square yard per month for 276.28 sq. yards plot of complainant No.1 for the period 1.6.2016 to 30.6.2016 amounting to Rs.760/- plus service tax @16% (Rs.114/-) total Rs.994/-. The OP No.1 also claimed from complainant No.1 an alleged outstanding amount of Rs.26067/- for so called outstanding invoices balance. OP No.1 also claimed an interest of Rs.6753/- up to 1.6.2016. Similarly, complainant No.2 received a invoice No.C008678 dated 1.6.2016 in which OP No.1 claimed common area maintenance @ Rs.2.750/- per square yard per month for 358.8 sq. yard plot of complainant No.2 for the period 1.6.2016 to 30.6.2016 amounting to Rs.987/- plus service tax @ 15% (Rs.148/-), total Rs.1142/-. OP No.1 also claimed from complainant No.2 an alleged outstanding amount of Rs.31005/- for so called outstanding invoices balance. The OP No.2 also claimed an interest of Rs.7062/- up to 1.6.2016. These demand and invoices are totally untenable, unjust, without any basis, illegal, unreasonable, vague and in violation of the principles of natural justice and the same are liable to be set aside on the ground that complainant No.1 purchased the plot in April, 2013 and she is not liable to make any payment of interest of the previous period as claimed by Op No.1 illegally; that OP No.1 has earlier charged the rate of maintenance charges @ Rs.1.50 per square yards per month up to 30.4.2014 and thereafter from 1^st May, 2014 the rate of maintenance charges was arbitrarily enhanced to Rs.2.25 sq. yards per month. Further the rate of maintenance charges was enhanced to Rs.2.75/- per square yard per month from 1^st October, 2014 and which is now being claimed vide impugned notice dated 10.5.2016. The complainants also collected the copy of maintenance and service agreement and the terms and  conditions of agreement as mentioned in clause No.8 in which it has been specifically mentioned that on 1^st April, the maintenance charges shall escalate at the rate of 10% on the previous rate of maintenance charges due to increase of salary, dearness and other allowances in increase in cost of material. It has already been mentioned above that the rate of maintenance was not enhanced till 1.5.2014. Thus, OP No.1 is debarred from claiming the enhanced amount from 1.5.2014. The OP No.1 can only enhance the amount @ 10% from previous charges and that too only from 1.4.2015 and that too only when he has properly maintained the area. Moreover, no maintenance facilities are being provided by OP No.1 because of the lack of actual facilities. The Ops are entitled to charge the maintenance charges only after providing all the facilities to the complainants which is not being done. OP No.1 is illegally claiming the maintenance charges without providing the facilities. Till today the Ops did not provide the following facilities to the inhabitants what to talk about the maintaining the facilities:-

a) Installation of 33 KV Sub Station (Electricity),

b) Completion of sewerage treatment plant.

c) Construction of security boundary wall.

d) Club.

e) Swimming pool.

f)Shopping complex.

g)Dispensary.

h) The security system is almost on the failure and in case of complainant No.1, the security system is useless.

i) The condition of roads of the area is very poor/worst and in case of complainant No.1, the maintenance of road is useless because the house of complainant is situated on the HUDA road.

                    The complainants approached the Ops and gave many requests/ representations but to no effect. Thus, it amounts to deficiency in service on the part of Ops. Hence, the present complaint was moved by the complainant with the prayer to direct the Ops to complete the facilities in Global City, Sector-29, Kurukshetra as per infrastructure and layout plan; Ops be restrained not to charge the maintenance amount from the complainant till providing the above said facilities and too not more than the rate of Rs.1,50 per month per square yard from the date of providing the above said facilities, the Ops be restrained from claiming any interest on illegal demand of maintenance; the invoices and notice be declared null and void; to pay back the amount of club charges of Rs.25,000/- along with interest 18% per annum not to claim the amount of Rs.100/- per KW per month as claimed by the Ops and to refund the amount illegally recovered from the complainant, to pay Rs.2,00,000/- each of the complainants as compensation for mental agony and harassment and Rs.35,000/- as litigation expenses.

3.                 Upon notice, opposite parties appeared and contested the complaint by filing the written statement taking certain preliminary objections to the effect that the complainant has concealed the true and material facts from this Forum. In fact, Unit No.328-D was originally allotted to Smt. Manjeet Mor wife of Mr. Dharambir Mor. Thereafter, the said Unit was transferred in the name of Ashu Garg. Thereafter, Ashu Garg transferred the said unit in favour of Yogesh Gupta. Conveyance deed No.21655 dated 22.2.2012 registered in the office of Sub-Registrar, Thanesar was executed by the builder in favour of Yogesh Gupta. The detail terms and conditions regarding the Unit No.D-328 are well enumerated in the said Conveyance Deed. Thereafter, Yogesh Gupta transferred the said Unit in favour of complainant No.1 Neelam Rani vide registered sale deed No.516 dated 29.4.2013. The complainant No.1 Neelam Rani being the last transferee is bound by all the terms and conditions enumerated in the allotment letter, Plot Buyer Agreement and the Conveyance Deed dated 22.2.2012.

4.                Unit No.240-C was originally allotted to Ishwar Singh son of Dharam Singh. Thereafter, the sad Unit was transferred by Ishwar Singh in the name of Paramjeet Kaur i.e. complainant No.1. Conveyance deed No.13533 dated 29.9.2011, registered in the office of Sub-Registrar, Thanesar was executed by the builder in favour of Paramjeet Kaur (complainant No.2). The detail terms and conditions concerning the Unit No.C-240 are well enumerated in the said conveyance deed. The complainant No.2 being the last transferee is bound by all the terms and conditions enumerated in the allotment letter, Plot Buyer Agreement and the Conveyance Deed. The Maintenance agreement with regard to Unit No.D-328 was executed between Yogesh Gupta and the Op No.1. The detail terms and conditions of the agreement are well enumerated in the agreement dated 22.2.2012 itself. The parties are bound by the terms and conditions of the agreement. The Maintenance Agreement was assigned from the name of Yogesh Gupta in the name of Neelam Rani complainant No.1 after the transfer of the said Unit by Yogesh Gupta, in favour of complainant No.1. The complainant No.1 accepted all the rights and liabilities under the Maintenance Agreement assigned in her favour. The maintenance agreement with regard to Unit No.C-240 was executed between complainant No.2 and OP No.1. The details terms and conditions of agreement are well enumerated in the agreement dated 29.9.2011 itself. The parties are bound by the terms and conditions of the agreement. The Op No.2 is a licensed colony vides licence No.288 of 2007 granted by the Director, Town and Country Planning, Haryana under the Haryana Development Regulation of Urban Areas Act, 1975 and Rues 1976. The said license has been renewed by the DTCP, Haryana from time to time. The status of the Op No.2 is that of colonizer/builder whereas the status of the complainants is that of agreement owner as defined under the relevant statutes. It is the duty of the complainants being the apartment owners to bear the expenses for the common area the apartment owner cannot claim exemption towards the common expenses by waiver of the use or enjoyment of the any of the common area. If an apartment owner failed to pay the common area maintenance charges, the said charges become a charge on the said apartment. Upon the transfer of such apartment, the transferee of the apartment shall be liable for the unpaid amount of the maintenance charges irrespective of the fact that the said charges relates to the period prior to the transfer in favour of such transferee. In any case of the transferee cannot escape its liability to pay the maintenance charges; that the complaint is bad for mis joinder of Jagran Developers Private Limited, who is a necessary party in the present case; that the development rights of Jindal Reality Private Limited have been taken over by Jagran Developers Private Limited. The present complaint relates to the development issues and the complaint cannot be effectively decided without impleading the Jagran Developers Private Limited which is having the development rights. Hence, in view of the facts and circumstances mentioned above, there is no deficiency in service on the part of answering Ops and as such, the complaint of the complainant is liable to be dismissed with costs. On merits, the contents of the complaint were denied to be wrong. Preliminary objections were repeated. Prayer for dismissal of the complaint was made.

 

5.                The complainant in support of his case has filed affidavit Ex.CW1/A and tendered docments Ex.C-1 to Ex.C-8.

 

6.                On the other hand, learned counsel for the Ops filed affidavit Ex.RW1/A and tendered documents Ex.R-1 to Ex.R-108 and closed his evidence.

7.            The learned counsel for the complainant has argued that the Ops are developing a residential colony in District Kurukshetra and is developing in the name of Jindal Global City, now called as Global City, Sector 29, Kurukshetra as per norms of the District Town and Country Planning Deptt. Haryana vide license No.288 of 2007 dated 29.12.2007.   The complainants purchased plots No. D-328 and C-240 in the said city for constructing residential houses. It is argued that plot NO.D-328 was initially allotted to one Manjeet Mor in the year 2009 and a plot buyer agreement with regard to the said plot NO.D-328 was executed by her. Lateron Manjeet Mor sold the plot to Yogesh Gupta and conveyance deed  dated 22.2.2012 was executed between the said Yogesh Gupta and the OP No.1. A maintenance and service agreement was also executed between them. The complainant No.1 purchased the said plot from Yogesh Gupta vide sale deed dated 29.4.2013. Even after the execution of the sale deed in favour of the complainant no.1 , the OPno.2 never issued any allotment letter or conveyance deed or transfer letter in favour of the complainant no.1.  After registration of sale deed, the complainant no.1 has raised construction. Afterwards, the complainant was pressurized to clear some outstanding dues of Yogesh Gupta previous owner which was claimed as Rs.3500/- though no invoices were shown at that time.  The complainant no.1 deposited the amount vide receipt C001443 dated 29.10.2013 . 

 

8.                It is further argued that as far as complainant no.2 is concerned, conveyance deed, buyer’s agreement dated 29.1.2011 was executed between him and OP No.2. A maintenance and service agreement was also executed between him and OP No.1. He raised construction and lastly paid the amount of maintenance charges vide receipt No.CC001846 dated 20.5.2014. Now to the utmost surprise  of complainant no1. She received a invoice No.CV008743 dated 01.06.2016 in which OP No.1 claimed common area maintenance charges @ 2.75 per square yard per month for 276.28 sq.yards plot of the complainant no.1 for the period  1.6.2016 to 30.6.2016 amounting to Rs.760/- plus service tax @ 16%  (Rs.114) total Rs.994/- The OP No.1 also claimed from the complainant no.1 an alleged outstanding amount of Rs.26067/-  for so called outstanding invoice balance. Op No.1 also claimed an interest of Rs.6753/- upto 1.6.2016.Similiarly, the complainant no.2 received a invoice NO.C008678 dated 1.6.2016 in which the OP No.1 claimed area maintenance @  Rs.2.750 per square yard per month for 358.8 sq.yards @Rs.2.750/- per square yard per month for 358.8 sq.yard plot of the complainant no.2 for the period 1.6.2016 to 30.06.2016 amounting to Rs.987 plus service tax @ 15% ( Rs.148), total Rs.1142/- OP No.1 also claimed from the complainant an alleged outstanding amount of Rs.31005/- for so called outstanding invoice. The OP No.2 also claimed  and invoices are totally untenable unjust without any basis, illegal and in violation of principles of natural justice

 

   9.                     It is further argued that the complainant no.1 purchased the plot in April, 2013 and he is not liable to any more.  The OP no.1 has earlier charged the rate of maintenance charges @ Rs.1.50 per square yard per month upto 30.4.2014 and thereafter from 1.4.2014, rate of maintenance charged was enhanced to Rs.2.25 per square yard per month. Further, the rate of maintenance was enhanced to 2.75 per square yard per month from 1.10.2014 which is illegal  and now being claimed vide notice dated 10.5.2016.

10.                       It is further argued that as per clause no.2 of the  terms and conditions of the agreement, the maintenance charges shall escalate at the rate of 10% on the previous rate of maintenance charges due to increase of salary, dearness and other allowances.  It is also argued that rate of interest has not been enhanced till 1.5.2014.  Thus, the OP No.1 is debarred from claiming the enhanced amount from 1.5.2014.  The OP No.1 can only enhance the amount @ 10% from previous charges and that too only from 1.4.2015 and that too when he has properly maintained the area.  It is argued that no maintenance facilities are being provided by OP No.1 because of the lack of actual facilities.  The Ops are only entitled to charge the maintenance charges only after providing all the facilities. The Ops have not  installed 33 KV Sub Station as agreed.  Sewerage treatment plant , construction of security boundary wall is lacking.  Arrangements of club and swimming,  shopping complex has not been made.

 

  11.               It is argued that there is no agreement between the complainant no.1 and buyer and no amount can be demanded by the OP no.1 from the complainant after lapse of three years and as such demand of the OP is illegal and debarred.

 

12.              On the other hand, learned counsel for the Ops while assailing the arguments advanced on behalf of the complainant has argued  two agreements i.e. plot buyers agreement Ex.R-1 and service maintenance agreement Ex.R-2 were  executed between the  original buyers of the plot  Majit Mor and Ishwar Singh and the present complainant no.1 and 2 have stepped into the shows of the original purchases, therefore, the terms and conditions of the said Ex.R-1 and Ex.R-2 are binding upon the present complainants and the Ops. In Section 27(o) it is mentioned that “the parties  hereto shall be bound by the terms and conditions of the Buyer’s agreement/Sale/Conveyance deed and all the relevant terms thereof and the same shall be deemed to be incorporated in this Agreement and to constitute an integral part thereof.  It is also argued that as per Section 2(a) of the Maintenance Agreement the complainant shall pay @ Rs.3/- per sq. yard per month as part of Maintenance Charges in addition to the charges towards electricity consumption, water consumption, monthly club charges etc.  However, presently the  Ops are charging Rs.2.75 per sq. yard per month and has given the concession of  Rs.0.25, therefore, it cannot be s aid that the Ops are charging excessive amount towards maintenance charges. Earlier, Ops were charging Rs.1.50 and Rs.2.75 per sq. yard per month, therefore, it cannot be said that the Ops are charging the excessive rate than the prescribed in the Plot Buyer’s Agreement.

 

 13.            It is also argued that this Commission has got no territorial jurisdiction to entertain and decide the present complaint in view of Section of clause 27 of the Plot Buyers Agreement wherein it is mentioned that “The courts of Delhi alone shall have the jurisdiction in all matters arising out of touching and concerning this Agreement Registration of the place of execution of the Agreement which is deemed to be at Delhi. He has placed reliance on  Mukesh Kumar and another Vs. M/s Utility Bulders and Leasing (India) Limited-Law Finder Doc Id # 783990, Angile InsulationsVs. Davy Ashmore India Limited, VOL.CXI –(1995-3) 275. PLR, Hanil Era Textiles Limited Vs.Puromatic Filters (P)Limited  PLR SXXXVIII (2004-3) 309, Hazari Lal Vs. Haryana Khandi and village Industries Law Finder Doc Id # 130286.

 

14.              It is also argued that the OP No.2 is an independent body and the present complaint is not maintainable  and is liable to be dismissed because the complaint has been filed by only two persons and compliance of Section 12(1) (c) of the Consumer Protection Act has not been made. The complainants have neither moved an application under Section 12 (1)(c) of the Consumer Protection Act nor they have pleaded that they are pursuing complaint on their own behalf as well as on behalf of numerous other consumers, so interested in the complaint. Therefore, the present complaint is liable to be dismissed for non compliance of Section 12(1) (c) of the Consumer Protection Act.  Reliance has been placed on the authorties K.V.Gouri Shankar and 8 others Vs.M/s Adel Landmarks Limited Law Finder Doc Id # 763357 and  Shamsher Singh  Vs. M/s Adel Landmarks Limited Law Finder Doc Id # 814311

 

15.              After hearing the learned counsel for the parties and going through the case file, we are of the considered view that this Commission has no territorial  jurisdiction to decide the present complaint. Because as per clause  27 (o)of Maintenance and Service Agreement, “ The parties shall be bound by the terms and conditions of the Buyer’s Agreement/Sale Agreement/Conveyance deed and all the relevant terms thereof and the same shall be deemed to be incorporated in this Agreement and to constitute an integral part thereof. The argument of the learned counsel for the Ops that both the parties entered into an agreement of their own volition, adverting jurisdiction in a court of particular place. In this case the parties have entered into contract that only Delhi courts shall have jurisdiction to decide the dispute if any in between the parties as per clause 27  of the Plot Buyers Agreement. In the authority Mukesh Kumar and another’s case (Supra)  it is held that “ Parties entered into an agreement of their own volition, adverting jurisdiction in a court of particular place. Such agreement or contract cannot be said to be harsh or oppressive- merely that subject matter of the complaint falls within the jurisdiction of other place. Nor such contract can be said against public policy when contract is as per stipulating choice of the parties.

                   In the authority Davy Ashmore India Limited’s case (Supra) Hon’ble Supreme Court of India has held that “ If the parties to the contract agreed to rest jurisdiction in one such court to try the dispute.. The agreement  would be valid…If such a contract is clear, unambiguous and explicit and not vague… Contract Act (9of 1872) Sections 23 and 28.”

 

                   In Hanil Era Textiles Limited, The Hon’ble Supreme Court of India has held  “Agreement providing-Any legal proceedings arising out of the order shall be subject to jurisdiction of the courts in Mumbai-The Courts of Delhi have no jurisdiction –Civil Procedure Code, 1908 (V of 1908).”

 

                   Same view has been taken by the Hon’ble Punjab and Haryana High Court in Hazari Lal’s case (Supra).

 

                   Thus in view of the fact that the parties to the present complaint in case of any dispute have opted for jurisdiction of Delhi courts, the present complaint before this Commission at Kurukshetra is not maintainable and  deserves to be dismissed on  this ground alone.

 

16.              Further, arguments of the learned counsel for the Ops that the present complaint is not maintainable for non compliance of Section  12(1) (c) of the Consumer Protection Act. In the case in hand, the Ops have set up a residential area having many residents but the present complaint has been filed by two persons namely Neelam Rani and Paramjeet Kaur.  The complainants  have not moved an application u/s 12(1) (c) of the Consumer Protection Act nor they have pleaded in the complaint that they are pursuing complaint on their own behalf as well as on behalf of numerous other consumers, so interested in the complaint. Thus for non compliance of Section 12 (1) (c) of the Consumer Protection Act, the present complaint before this Commission is not maintainable and the same deserves to be dismissed on this ground also. In this regard reliance is place don the law laid down in the authority K.V.Gouri Shankar and 8 others Vs.M/s Adel Landmarks Limited Law Finder Doc Id # 763357 and  Shamsher Singh  Vs. M/s Adel Landmarks Limited Law Finder Doc Id # 814311.

 

17.              The argument of the learned counsel for the Ops that the  complainant has challenged the rate of maintenance charged vide invoice Ex.C-3 dated 9.04.2014 and Ex.C-4 dated 20.05.2014 whereas the present complaint has been filed on 13.07.2016 both the above said invoices Ex.C-3 and Ex.C-4 have been challenged after more than two years and as such present complaint is barred by limitation,  also appears to be justified. In the authority V.N.Shrikhande Vs.Anbita Sena Fernandes Law Finder Doc Id # 220230, it has been held by the Hon’ble Supreme Court of India “Consumer Protection Act, Section 24A and 17 – Medical Negligence –Doctor conducted operation of stomach of patient in 1993-Patient felt constant pain for 9 years- Second operation  conducted in 2002-Pieces of gauges found in stomach during second operation-Complaint filed against the doctor 2004 –Held complaint was barred by limitation which is  two years.

 

18.              In view of our above discussion and the authority cited above on behalf of the Ops, the present complaint is also barred by limitation and it deserves to be dismissed on this ground also.

 

19.              In view of our above discussion we hold that the present complaint before this commission is not maintainable for want of territorial jurisdiction and it also deserves to be dismissed being barred by limitation. When the present complaint is barred by limitation and not maintainable before this Commission, there is no need to go on the merits of the present complaint. Consequently, the present complaint is hereby dismissed. Certified copy of the order be supplied to the parties concerned as per the rules and the file be consigned to the record room after due compliance.

 

Announced in the open  Commission.

Dated: 18.02.2022.                                                        President.

 

 

                                      Member                 Member.