BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.173 of 2014

Date of Instt. 22.05.2014

Date of Decision :03.08.2016

1.Ashwini Saxena aged about 50 years son of Harish Chandra Saxena;

2.Mrs.Ritu Saxena wife of Ashwini Saxena;

Both at present R/o 75-C, RCF, Kapurthala. Punjab.

..........Complainants

Versus

1.M/s Nitishree Infrastructures Ltd., (formerly known as Shourya Towers Pvt Ltd.,) 78-B, Sector D-II, DDA Flats, Mayur Vihar, Phase-III, Delhi-110096 through its Managing Director/Directors/Secretary/ Manager.

2.M/s Shourya Towers Pvt Ltd., B-111, Sector-5, Noida-201301, UP, through its MD/Directors/Principal Officer/Secretary/Manager.

3.M/s Nitishree Infrastructures Ltd., (formerly known as Shourya Towers Pvt Ltd.,) Shourya Greens, Surya Enclave, Amritsar Byepass Road, near Trinity College, Jalandhar, Punjab through its MD/ Directors/Secretary/Manager.

.........Opposite parties

Complaint Under the Consumer Protection Act.

Before: S. Bhupinder Singh (President)

Sh.Parminder Sharma (Member)

Present: Sh.Atul Malhotra Adv., counsel for the complainants.

Sh.APS Pathania Adv., counsel for the OPs.

Order

Bhupinder Singh (President)

1. The complainants have filed the present complaint under the Consumer Protection Act against the opposite parties (hereinafter called as OPs), on the averments that complainants jointly booked a three bedroom deluxe flat comprising of 1955 sq.feet area in the scheme developed by OPs i.e. flat No.A-2/202. The OPs allotted the aforesaid flat to the complainant vide allotment letter dated 29.3.2009. Complainants submitted that they made entire payment of the aforesaid flat to the OP without any delay. OPs had advertised in the media that the construction of the said flat shall be completed within two years and the delivery of the possession of the said flat shall be made within a period of two years i.e. till December 2007 with a grace period of three months but the delivery of the said flat was delayed illegally and arbitrarily by the OPs. The delivery of the possession of the said flat was given to complainants on 12.4.2013 by the OPs i.e. after delay of about 5 years. Complainants had protested against the delay in delivery of possession for about five years vide letter dated 6.1.2013 duly received by OPs, but in vain. The OPs are liable to pay liquidated damages on account of delay in building the flat and delivery of possession to the complainants till 12.4.2013 which comes out to Rs.5,86,500/- from March 2008 to April 2013 @ Rs.9775/- per month. After taking the possession of the said flat, complainants found that the flat neither gives the look nor the same provides amenities and facilities of a developed colony like a seven star club or community hall or elevator or shopping complex or parks or roads or covered parking or security etc as advertised and as assured by the OPs. Complainants have noted shortcomings, manufacturing defects etc, such as 95% of the roads project are still under construction. OPs have failed to provide basic amenities like roads, street lights, sewerage, water connection etc. There is a wide scale seepage etc. OPs have failed to provide 7 star superlative club with swimming pool, gymnastic facility, family restaurant, health club, jogging track, sauna bath facility, green parks, shopping centre, fire fighting arranges, elevators, only one lift has been provided which is also not working properly, power back-up facility, geyser facility in bathrooms and kitchen. The OPs have also illegally charged Rs.5896/- as service charges which became effective from July, 2010. In addition to the above defect, stair case slabs, passage, corridors and common areas slabs are broken at various places, security guards have not been appointed. Complainants approached the OPs to provide the aforesaid facilities/services to the complainants but the OPs failed to redress the grievances of the complainants. Complainants also served legal notice dated 20.3.2014 upon the OPs but OPs failed to redress the grievances of the complainants. On such averments, the complainant has prayed for directing the OPs to pay compensation of Rs.9 Lakhs and cost of litigation expenses.

2. Upon notice, OPs appeared through counsel and filed written reply pleading that complainants received the possession of the flat in question after being fully satisfied and has waived off all his difficulties as alleged in the complaint at that time, as such at this stage, the complainant is not entitled to agitate these allegations before this Forum. Complainant obtained no objection certificate on 12.4.2013 with regard to the installation of electricity connection and the complainant was apprised on 2.1.2013 to make the payment of Rs.1,56,262/- to the OPs being the charges mentioned in the said letter. Complainant never raised any objections at the time of taking the possession of the flat in question or at the time of taking the “No Due Certificate “ from the OPs. OPs never made any advertisement in any newspaper in fact some news were published in the newspaper and the same can not be treated as advertisement on behalf of the OPs but the OPs never gave any publication at their own level in any daily newspaper as advertisement. The complainant produced copy of agreement dated 29.3.2009 from which it is clear that complainant never misguided nor he was allured. Rather complainant himself voluntarily has entered into contract/agreement with the OPs. There was no agreement between the parties to pay liquidated charges @ Rs.5/- per sq.feet per month to the allotee. There is no such commitment or publication made by the OPs. Complainant was so many times assured to take physical possession of the flat in question but he himself did not turn-up prior to 12.4.2013. Number of people are residing in the locality of the complainant and they never agitated about any of the amenities etc. The OPs denied that the roads of the project are still under construction. All basic facilities/ amenities have been provided to the resident of the locality. The OPs are committed to provide each and every facilities as per the circumstances available. The OPs have already provide the green parks, shopping centres, parking facilities alongwith elevators. The OPs have also provided geysers and other facilities as mentioned in the agreement. The facilities like lighting/street lights, passages, corridors, roads etc have been provided. The OPs submitted that the complaint is false and frivolous one and the same should be dismissed with special compensatory cost.

3. In support of their complaint, learned counsel for the complainant has tendered into evidence affidavits Ex.CA & Ex.CB alongwith copies of documents Ex.C1 to Ex.C29, Ex.C31 to Ex.C75 and closed his evidence.

4. On the other hand, learned counsel for opposite parties has tendered into evidence affidavits Ex.OPA & Ex.OPB alongwith copies of documents Ex.OP1 to Ex.OP19 and closed evidence.

5. We have heard the Ld. counsel for the parties, minutely gone through the record and have appreciated the evidence produced on record by both the parties with the valuable assistance of Ld. counsels for the parties.

6. From the record i.e. pleadings of the parties and the evidence produced on record by both the parties, it is clear that complainants jointly booked a three bedroom deluxe flat of 1955 sq.feet area in the scheme developed by OPs i.e. flat No.A-2/202 vide agreement Ex.OP2/Ex.C2. The OPs allotted the aforesaid flat to the complainants vide allotment letter dated 29.3.2009 Ex.C3. Complainants submitted that they made entire payment of the aforesaid flat to the OP without any delay. OPs had assured/advertised in the media that the construction of the said flat shall be completed within two years and the delivery of the possession of the said flat shall be made within a period of two years i.e. till December 2007 with a grace period of three months. Whereas, the delivery of the possession of the said flat was given to complainants on 12.4.2013 by the OPs i.e. after delay of about 5 years. Complainants lodged protest in this regard with the OPs vide letter dated 6.1.2013 Ex.C7. The OPs are liable to pay liquidated damages on account of delay in building the flat and delivery of possession to the complainants till 12.4.2013 which comes out to Rs.5,86,500/- from March 2008 to April 2013 @ Rs.9775/- per month i.e. Rs.5/- per sq.feet per month. After taking the possession of the said flat, complainants found that the flat neither gives the look nor the flat provides amenities and facilities of a developed colony such as a seven star club or community hall or elevator or shopping complex or parks or roads or covered parking or security etc as advertised and as assured by the OPs. Apart from this, the flat is having shortcomings, manufacturing defect etc, such as 95% of the roads project are still under constructions. OPs have failed to provide basic amenities like roads, street lights, sewerage, water connection etc. There is a wide scale seepage etc. OPs have failed to provide 7 star superlative club with swimming pool, gymnastic facility, family restaurant, health club, jogging track, sauna bath facility, green parks, shopping centre, fire fighting arranges, elevators, only one lift has been provided which is also not working properly, power back-up facility, geyser facility in bathrooms and kitchen. The OPs have also illegally charged Rs.5896/- as service charges which became effective from July, 2010. In addition to the above defect, stair case slabs, passage, corridors and common areas slabs are broken at various places, security guards have not been appointed. Complainants approached the OPs to provide the aforesaid facilities/services to the complainants but the OPs failed to redress the grievances of the complainants. Complainants also served legal notice in this regard dated 20.3.2014 Ex.C26 upon the OPs but OPs failed to redress the grievances of the complainants. Learned counsel for the complainants submitted that all this amounts to deficiency of service on the part of the OPs qua the complainant.

7. Whereas the case of the OPs is that complainants received the possession of the flat in question after being fully satisfied. So, he has waived off all his allegations/protest as alleged in the complaint at that time. So, complainant should not be allowed to agitate these allegations now before this Forum. Complainant obtained “No Objection Certificate” on 12.4.2013 with regard to the installation of electricity connection and the complainant was apprised vide letter dated 7.12.2012 Ex.OP4 to make the payment of Rs.1,56,262/- being the charges payable by the complainant mentioned in the said letter. Complainant was also served with reminder dated 26.2.2013 Ex.OP5 but the complainant filed the present complaint in this Forum. Complainant never raised any objections at the time of taking the possession of the flat in question or at the time of taking “No Due Certificate” from the OPs. OPs never made any advertisement in any newspaper, in fact some news were published in the newspaper and the same can not be treated as advertisement on behalf of the OPs but the OPs never gave any publication at their own level in any daily newspaper as advertisement. The complainant produced copy of agreement dated 29.3.2009 Ex.C2 from which it is clear that complainants were never misguided nor they were allured. Rather complainants themselves voluntarily has entered into contract/agreement with the OPs. There was no agreement between the parties to pay liquidated charges @ Rs.5/- per sq.feet per month to the allotee. There is no such commitment or publication made by the OPs. Complainants were so many times informed to take physical possession of the flat in question but they themselves did not turn-up prior to 12.4.2013. Number of people are residing in the locality of the complainant and they never agitated about any of the amenities etc. The OPs denied that the roads of the project are still under construction. All basic facilities/ amenities have been provided to the residents of the locality. The OPs are committed to provide each and every facilities as per the circumstances available. The OPs have already provided the green parks, shopping centres, parking facilities alongwith elevators. The OPs have also provided geysers and other facilities as mentioned in the agreement. The facilities like lighting/street lights, passages, corridors, roads etc have been provided. The complainants have produced photographs which were taken at the time of making the construction initially. The OPs submitted that the complaint is false and frivolous one and same should be dismissed with special compensatory cost.

8. From the entire above discussion, we have come to the conclusion that complainants jointly booked a three bedroom flat of 1955 sq.feet area in the scheme developed by OPs and the OPs allotted flat No.A-2/202 to the complainants vide allotment letter dated 29.3.2009 Ex.C3 and parties executed agreement dated 29.3.2009 in this regard Ex.OP2/Ex.C2. The complainants made entire payment of the aforesaid flat to the OPs without any delay and this fact is not contested by the OPs. The OPs had assured/advertised in the media that the construction of the said flats shall be completed within two years and delivery of the possession of the said flat shall be made to the allotee within a period of two years i.e. by the end of December 2007 with grace period of three months and this fact has been admitted by the OPs in their written agreement dated 29.3.2009 Ex.C2 clause 9. Whereas the delivery of the said flat was given by the OPs to the complainant on 12.4.2013 i.e. after a delay of about five years and the complainant lodged request in this regard to the OPs vide letter dated 6.1.2013 Ex.C7. As per this agreement Ex.C2 clause 9, the OPs are liable to pay liquidated damages on account of delay in building the flat and delivery of possession to the complainants from January 2010 to 12.4.2013 @ Rs.5/- sq.feet per month i.e. Rs.9775/- per month. The OPs have admitted the execution of this agreement Ex.C2/Ex.OP2. The OPs have admitted that the possession of the flat in question was delivered to the complainant on 12.4.2013. Whereas, the OPs were, as per this agreement Ex.OP2 clause 9 liable to hand over the possession of the said flat to the complainant by December 2007 with grace period of three months that is why the parties have added this provision in clause 9 of the aforesaid agreement that in case of delay in handing over the possession of flat to the allotee by the company as per the aforesaid stipulated period i.e. by December 2007 and after providing for delay on account of force majeure conditions and grace period, the company undertakes to pay liquidated damages @ Rs.5/- per sq.feet per month to the allotee on the basis of area of the flat of allotee. Therefore, OPs are liable to pay this amount @ Rs.5/- sq feet per month to the complainant from March 2008 to April 2013 @ Rs.9775/- per month, as the area of the flat of the complainant is 1955 sq.feet, which amounts to Rs.5,86,500/-.

9. As regards other facilities/basic amenities which are to be provided by the OPs to the complainants for the flat in question, this Forum vide order dated 20.7.2015 appointed local commissioner Sh.KC Malhotra Advocate with the directions that he shall visit the spot and report the actual and factual position existing there, with particular reference to the facilities/amenities promised in the agreement or which are mentioned in the brochure. Resultantly, the local commissioner visited the spot after giving notice dated 18.8.2015 to counsels for both the parties regarding his visit to the spot on 22.8.2015 at 4.30 PM. He also submitted that both the counsels were also informed on mobile to confirm their presence as well as of parties on the spot. However, counsel for the OP informed that representatives of the OPs would be present on the spot but none appeared on behalf of the OP on the spot on 22.8.2015 and the local commissioner had to come back. Therefore, again as per order of this Forum dated 10.9.2015, the local commissioner visited the spot i.e. flat in question on 14.9.2015 at 4.30 PM in the presence of counsel for the complainant alongwith Mrs.Ritu Sexena complainant and Vijay Inder Partap, General Manager of OPs. He inspected the spot in the presence of both the parties and submitted his report dated 21.9.2015 which is on record and no objection has been filed by either of the parties against this report of the local commissioner. This report has been prepared by the local commissioner after inspecting the spot in the presence of counsel for the complainant and in the presence of parties in person i.e. Ritu Saxena complainant and Vijay Inder Partap, General Manager of the OPs alongwith staff of the Ops. The local commissioner has submitted that the fire fighting equipment installed in the locality was in bad condition i.e. not in working condition. There was seepage visible to naked eyes inside the flat of the complainant. The photographs in this regard are LC11 to LC17. There was provision for one geyser each for all bathrooms but the same has not been installed. There is no lighting system in passages and corridors as well as on the roads, photographs in this regard LC22 and LC23. However, local commissioner submitted that complainant could not produce any document/brochure that the OPs were to provide seven star superlative club, swimming pool, gymnastic facility, family restaurant, jogging track, sauna bath facility etc. So, the local commissioner did not report about these facilities. This report of the local commissioner remained unrebutted and unchallenged as neither of the party submitted any objection against this report of local commissioner. So, it stands fully proved on record that the OPs have also failed to provide certain basic amenities to the allotee i.e. complainant in the present case, such as fire fighting equipment, flat in habitable condition, OPs are liable to stop seepage inside the flat of the complainant, install geyser in each bathroom, lighting system in passage, corridors as well as on the roads etc. It is well settled that the OPs are liable to provide basic amenities to the allotee i.e. motor-able roads, habitable condition of the flat, sewerage system and lighting system. However, the OPs can not be held liable to provide luxury items of life unless the same are specifically mentioned such as seven star superlative club, swimming pool, gymnastic facility, family restaurant, jogging track, sauna bath facility, etc. However, the OPs have failed to provide basic amenities to the allotee i.e. complainant in the present case such as motorable roads with lighting facility, flat in habitable condition and the facilities mentioned in the agreement between the parties Ex.C2. So, the OPs are also liable to pay compensation for not providing basic facilities/amenities. Therefore, the OPs are also directed to provide basic amenities to the allotee i.e. complainant i.e. motor-able roads to his flat with lights on the road, passage habitable condition of their flat, etc and the amenities/facilities as mentioned in the agreement Ex.C2/Ex.OP2 to the complainants within a span of six months.

10. Consequently, we allow the complaint with cost and the OPs are directed to pay a sum of Rs.5,86,500/- as liquidated damages @ Rs.5/- per sq.feet per month to the complainant from March 2008 to April 2013 within one month from the date of receipt of copy of order, failing which OPs shall be liable to pay interest @ Rs.9/- % per annum on this amount from the date of filing of the complaint till the payment is made to the complainant. The OPs are also directed to provide aforesaid basic amenities to the flat of the complainant as stated above as mentioned in the agreement Ex.C2/Ex.OP2 within period of six month. The OPs are also directed to pay compensation to the tune of Rs.1 Lakh and cost of litigation to the tune of Rs.3000/- to the complainant. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.

Dated Parminder Sharma Bhupinder Singh

03.08.02016 Member President