DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016
Case No.469/2010
Shri Vinod Kumar Yadav,
S/o Shri Sohanlal Yadav,
R/o Village Dhani Radha, P.O. Ahrod,
District Rewari, Haryana-123102 ….Complainant
Versus
M/s Asiana Housing & Finance (India) Ltd.
Unit No. 4 & 5 PlotNo.D-2, 3rd Floor,
Southern Park, Saket District Centre,
Saket, New Delhi-110017.
Also at:
5F Everest 46/C
Chowringhee,
Kolkata-700071 ….Opposite Parties
Date of Institution : 14.07.10 Date of Order : 20.04.18
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
ORDER
Complainant’s case, in brief, so far as is material for the purposes of deciding the present complaint is that the complainant was allotted a flat M-462 (4th floor) measuring 1140 sq. ft. or 105.95 sq. mtr in the residential complex known as “Ashiana Utsav”, Vasundhra Colony, Phase-II, Bhiwadi, District Alwar, Rajasthan for an amount of Rs.15,76,640/- by the OP. On personal visit, the complainant noted certain defects/observations in the said flat on 15.06.08 and he properly explained/listed all the defects to the OP to remove the same and also sought certain clarification which was followed by the letters and reminders. The complainant sent a possession letter duly signed but “under protest” and also mentioning the date of possession to be the actual date from when he had taken the possession and not the date as desired by the OP which was basically to cover up its unfair trade practice. The OP again sent a fresh possession certificate and maintenance agreement vide their communication dated 04.02.09. The Complainant again took up the matter with the OP for necessary pending work as per agreed specifications and to organize a combined inspection for measurement of super built up area but the OP did not take any step. Infact, the super built up area of the said flat was short and share of common area details never provided was about 334 sq. ft. which was not mentioned in the scheme and the agreement of the OP and, thus, was a clear case of unfair trade practice and cheating as such. The Complainant issued a legal notice through his counsel to the OP on 20.01.10 to rectify all the defects/observations of the said flat pointed out by the complainant or refund the excess amount charged by the OP with interest. Hence, this complaint for issuing directions to the OP to handover the possession of the flat in question, to repair/rectify all the defects in the flat, refund the amount overcharged by the OP with a heavy cost, to pay compensation amounting to Rs.5 lacs for mental agony, pain and harassment and to pay Rs.21,000/- towards litigation expenses.
OP in the reply has inter-alia stated that the complainant for the first time vide legal notice through his lawyer communicated his current address whereas no official information had come to the OP till date. It is stated that the complainant did not produce any material on the record to substantiate that he had asked the OP about some necessary pending work which was refused by the OP. Other averments made in the complaint have been denied by the OP. It is prayed that the complaint be dismissed.
Complainant has filed a rejoinder and stated that when the OP sent a letter stating therein that the OP had cleared all the defects/observations in the said flat as pointed out by the complainant vide various communications the complainant visited the site and saw that the OP had not rectified any defect/observation in the said flat but had tried to cover the cracks with the help of white cement/paint wherever required and the repairs as such were mere eyewash. He has reiterated that super built up area of the flat is short by 334 sq. ft. common area including main dwelling unit/ flat as per agreement and actually provided and overcharging has been made by the OP from the complainant on the super area of 1140 sq. ft. and instead offering only about 806 sq. ft.
Complainant has filed his own affidavit in evidence. On the other hand, affidavit of Sh. Nitin Sharma, AR has been filed in evidence on behalf of the OP.
In the affidavit the complainant has not annexed/exhibited any document stated to be relied upon by him.
On the other hand, the OP has relied on the documents Ex. RW1/1 to Ex. RW1/14.
Written arguments have been filed on behalf of the parties.
We have heard the oral arguments advanced on behalf of the parties and have also carefully gone through the file.
The onus to prove that there were certain defects/observations in the flat in question was on the complainant. However, the complainant has not relied on any document in the affidavit. From a perusal of the documents filed by the OP and particularly the Agreement copy of which is Ex. RW1/2 it transpires that the said flat had been booked by the complainant alongwith one Sh. Sohan Lal Yadav as per terms and conditions mentioned therein. Ex. RW 1/5 is the copy of duplicate copy of the “check list to be maintained during execution and duly submitted before giving possession” of flat No.M462 (flat in question). Ex. RW1/6 is the copy of a letter dated 06.12.08 sent by the OP to the complainant in response to the letters dated 09.10.08, 25.07.08 & 28.06.08 of the complainant wherein it had been pointed out that as many as thirteen repairs had been carried out in the bedroom, two in drawing room and store, three in kitchen while in Guest Bed (Entrance) no structural cracks were found in the flat in question. The complainant has not filed any document to show that the same is “eyewash repairs”. Ex. RW1/8 is the copy of a letter dated 15.01.09 written by the complainant to the OP wherein he inter-alia stated that the defects and rectifications had been carried out partially in the last 7 months and that super built up area is less approx. 30 sq. ft. We must say at once that the case of the complainant in the pleadings as well as in the affidavit is that super built up area is short by 334 sq. ft. common area including main dwelling unit. Now, as per this letter dated 15.01.09 super built up area is less approx. 30 sq. ft.
In our considered opinion, the complainant has not led any concrete evidence that there were some defects which were not repaired/rectified by the OP. If we go into the allegations made on behalf of the complainant that the super built up area given to him is less than as promised by the OP, then we have to record the oral evidence of both the parties and we shall require a report from an architect and the same cannot be done in summary proceedings which is the procedure to decide the complaint under the Consumer Protection Act.
In view of the above discussion, we do not find any merit in the complaint and accordingly we dismiss the complaint with no order as to costs.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 20.04.18.
