Chandigarh

DF-II

CC/602/2020

Omaxe Cassia - Complainant(s)

Versus

M/s Omaxe Chandigarh Extension Developers Pvt. Ltd. - Opp.Party(s)

Saksham Arora Adv

12 Aug 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Consumer Complaint  No	:	602 of 2020
Date  of  Institution	:	04.11.2020
Date   of   Decision	:	12.08.2024

 

 

 

 

Omaxe Cassia Residents Welfare Association through its Joint Secretary, Flat No.615, G.F. Omaxe Cassia Society Punjab 140901.

             … … … Complainant

 

Versus

1.  M/s Omaxe Chandigarh Extension Developers Pvt. Ltd. through its Managing Director, SCO 143-    144, 1^st Floor, Sector 8-C, Chandigarh.

2.  M/s Omaxe Chandigarh Extension Developers Pvt. Ltd. through its Managing Director, India Trade     Tower, 1^st Floor, Baddi Kurali Road, New Chandigarh Mullanpur, Distt. S.A.S. Nagar   Punjab 140901.

3.  M/s Facility Plus Pvt. Ltd. Flat No.715, GF     Omaxe Cassia Society Punjab 140901.

   … … … Opposite Parties

 

BEFORE:  MR.AMRINDER SINGH SIDHU,       PRESIDENT

                MR.B.M.SHARMA,                 MEMBER

                               

Argued by:    Sh.Sateekshan Sood, Counsel for Complainant.

Sh.Ishtneet Bhatia, Counsel for OPs.

 

ORDER BY AMRINDER SINGH SIDHU, M.A.(Eng.),LLM,PRESIDENT

 

1]       As per averments made in the complaint, the complainant namely Omaxe Cassia Residents Welfare Association is the sole voluntary association of members of the society Omaxe Cassia situated in New Chandiarh, Mullanpur and association was formed in accordance to the Punjab Apartment & Ownership Act and Punjab Apartment and Property Regulation Act. There are total 173 members associated with the complainant and all the members of the Omaxe Cassia Residents Welfare Association have paid a sum of Rs.20,000/- each as a part of IFMS which is a security amount kept by the builder to be maintained for the upkeep of the society.

    The complainant has filed the present complaint pleading that at the time of booking the apartments, several residents of the society had booked the ground floor at a price and size agreed, which was later on converted to upper ground floor and so on so fourth for the other apartments floors, which act of the OPs led to violation of Builder Buyer Agreement. It is stated that Facility Plus Agreement was also imposed forcefully upon the allottees of the society. It is stated that under the shelter of aforesaid both the agreements, OPs have been illegally collecting funds, intermingling various head of accounts and managing various governments authorities by creating arrears for the convenience of their management etc. It is stated that residents were forced to sign the agreements with an increased area and imposed compulsory parking space. It is submitted that other houses/apartments/units, which were originally allotted the agreed houses/apartments/units were being charged with 50% of CAM charges and the flats with no lifts were not being charged CAM in acceptance to 2018 agreement/minutes of the meeting (Annexure C-6). It is stated that the OPs created a fearful of law and order situation several times by means of disconnecting electricity as well as manhandling with the residents. It is further stated that the builder is misusing his position and rights in even the funds kept and collected from complainant in the name of IFMS. It is submitted that OPs have been using the complex of the complainant for the purpose of conducting commercial advertisements.

    The complainant has pleaded that club house was promised at the time of possession and money has been collected in this respect but not a brick has ever been laid. It is pleaded that entire society lacks proper earthing and only there is single wire providing electricity to every house from the generator and the main electricity supply grid. It is pleaded that OPs have violated the contract by providing less than adequate generator sets even after the residents have paid entire amount. It is also pleaded that water, supplied to the residents, is not in proper supply of minerals and nutrients to enable the residents to make an easy living and use the same for drinking. It is pleaded that society does not have an auto manual system which cause wastage of water and OP does not have fire safety equipments in the complex. It is also pleaded that the entire society suffers from the lack of proper boundary barrier/security. It is pleaded that the units suffer from incomplete possession as they lack basic facilities like proper designs of doors, almirahs, club house, lifts etc. It is pleaded that society also lacks from speed breakers, road signs, dustbins, rain water harvesting etc. It is also pleaded that electricity panels have been wrongly placed in the parks of the residential area making it dangerous for residents. It is pleaded that OPs have failed to complete all the promises as reflected in their brochure and promised by their representatives. Hence, this complaint has been filed alleging deficiency in service and unfair trade practice on the part of OPs.

 

2]       OP No.1 & 2 have filed joint reply and took preliminary objections, such as, jurisdiction by stating that the Commission cannot adjudicate upon the matter where the prima facie prayers are for modification of clauses of buyer’s agreement; complainant is not covered within the ambit of Consumer Protection Act, 2019; no cause of action has arisen against OPs and complaint cannot be adjudicated under summary jurisdiction. On merits, it is stated that complainant has made baseless allegations of deficiency in service and unfair trade practice etc. with an ulterior motive to amend/modify or rewrite of concluded agreement/contract duly executed between the buyers/residents and the OPs. It is stated that Independent Floor Buyer’s Agreement and Maintenance Agreement was entered between the parties and they are bound by the terms & conditions of the agreement. It is stated that the said agreement was duly signed and executed after properly understanding each and every clause contained in the agreement. It is stated that buyers/residents were neither forced nor influenced by the OPs to sign the agreement. It is denied that incomplete possession has been handed over to the residents. It is submitted that possession has been handed over to the residents of their respective units after satisfying themselves with the status of the project, construction material used therein, amenities and facilities provided. It is submitted that the entire project has been completed as per the layout and sanctioned plan and all the basic amenities and facilities have been provided at the project. It is stated that all the residents of the project have been happily using and enjoying all the amenities and facilities since many years and all these residents/alleged members of the association have been deceived by some unscrupulous residents into filing the present consumer complaint. Denying any deficiency in service or unfair trade practice as well as all other allegations, the OP No.1 & 2 has prayed for dismissal of the complaint. 

3]       OP No.3 has filed its separate reply on the similar lines as was filed by OP No.1 & 2 and took almost identical pleas as were taken by OP No.1 & 2 in their reply. 

4]       Parties led evidence in support of their contention.

5]       We have heard the learned counsels for the parties and have gone through entire documents on record.

6]       It is observed that complainant namely Omaxe Cassia Residents Welfare Association has imposed various allegations against the OPs for charging an amount of Rs.20,000/- from each member of Residents Welfare Association as part of Interest Free Maintenance Service by way of security amount by the OPs for maintaining the society but failed to maintain the society as per promise of OPs and agreement between the parties. The complainant alleged that OPs have made tall claims of providing a high class services to the complainant but failed to provide even an average services which are required to be provided for the safe and clean atmosphere for living. The complainant further alleged that OPs did not provide Club House as promised at the time of possession and collected the amount from the complainant in this respect but did not provide the same. They have not provided the proper children park as promised. Generator sets were placed in the park of the children instead their proper location. The elevators are not working properly and even boundary wall of the society is not constructed. The complainant further alleged that in the agreement dated 23.12.2018 between the complainant and representatives of OPs vide which they agreed to bear 50:50 towards monthly CAM charges due to deficiency in service provided by facility plus. Besides this, complainant has alleged that bills for electricity consumption are over charged by OPs and no separate meters in the name of the members of the Residents Welfare Society were got issued from the concerned quarter by the OPs. In order to prove the facts of the complaint, complainant has placed on file order dated 31.08.2020 passed by Competent Authority cum Sub Divisional Magistrate, Kharar, regarding formation of Omaxe Cassia Residents Welfare Association. Further, complainant has placed on record brochure of the OPs vide which OPs have claimed to provide world class infrastructure & amenities in their above mentioned project. It is also mentioned that luxurious Club House with 5 star facilities will be available to the members of the society. In this complaint, Parminder Singh, Divisional Engineer (Civil 2), GMADA, has submitted one ‘Inspection Report’ which is reproduced as under:-

Report of Divisional Engineer (Civil-2), Greater Mohali Area Development Authority (GMADA), PUDA Bhawan, Sector 62, S.A.S.Nagar.     In compliance of order dated 19.08.2021   passed by Hon'ble District Consumer Disputes Redressal Commission-II, U.T., Chandigarh in CC No.602 of 2020 (Omaxe Cassia Vs M/s Omaxe Chandigarh Extension Developers Pvt. Ltd. and others), the undersigned inspected the site of Integrated Residential Township of M/s Omaxe Chandigarh Extension Developers Ltd. situated in New Chandigarh on 03.09.2021 to check whether the club house constructions has been completed as per sanctioned map or not.     During this inspection, Revised Lay Out Plan approved by Town Planner, Punjab vide letter no. Chief 597/CTP(PB)/MPM/131 dated 04.02.2021 was shown by the Developer. According to this Revised Lay Out Plan, provision has been made by the developer for construction of Community Centre/Club House on 10582.92 square metres area in Part-A of this Project and also for Community Centre / Club House on 8126.93 square metres area in Part -F (Omaxe Cassia) of this Project.     At these sites, the Developer has already constructed Community Centre / Club House in Part-A of this Project. However,     the site for Community Centre / Club House in Part-F (Omaxe Cassia) of this Project is lying vacant, which stands demarcated with temporary sheets. Photographs of the site     for Community Centre / Club House in Part-F (Omaxe Cassia) are also annexed herewith”                           Sd/-                       (Parminder Singh) Place:SAS Nagar  Divisional Engineer (Civil-2) Dated 9-9-2021                GMADA

 

         In the above mentioned report, it is clearly stated that the site for Community Centre/Club House in Part-F (Omaxe Cassia) of this Project is lying vacant, which stands demarcated with temporary sheets. 

7]       The complainant has placed on file photographs of the undeveloped project at running page No.92-106 as Annexure C-5. Further, complainant has placed on record minutes of the meeting held on 23.12.2018 at India Trade Tower, New Chandigarh, which was duly attended by members of the Omaxe Cassia Residents Welfare Association and Representatives of OPs, wherein at page 5 of 5, it is mutually agreed between the parties that Omaxe will continue to give 50% of CAM charges unless the aforesaid issues are resolved by facility plus. The members of Omaxe Cassia Residents Welfare Association are bound to bear only 50% CAM charges due to deficiency in service provided by OPs and OPs agreed to bear 50% CAM charges unless the issues mentioned in Annexure C-6 in majority are resolved by OPs.

8]      In view of the above mentioned understanding and agreement between the parties vide Annexure C-6, it is concluded that members of Omaxe Cassia Residents Welfare Association and OPs will bear 50:50 share towards monthly CAM charges unless the majority of the issues mentioned in Annexure C-6 are resolved by the OPs. As OPs have not honoured agreement dated 23.12.2018 so complainant namely Omaxe Cassia Residents Welfare Association is forced to file the present complaint against them to enforce it and bear litigation expenses besides physical harassment and mental agony suffered by them on account of deficiency in service by OPs. Hence, complainant is entitled to be compensated for the above mentioned grounds. The complaint is partly allowed. OPs are directed to bear 50% of monthly CAM charges unless the majority of the issues mentioned in Annexure C-6 are resolved by the OPs and also pay lump sum compensation of Rs.One Lakh to the complainant within a period of 45 days from the date of receipt of certified copy of this order.

9]       The pending application(s) if any, stands disposed of accordingly.

         The Office is directed to send certified copy of this order to the parties, free of cost, as per rules & law under The Consumer Protection Rules & Act accordingly. After compliance file be consigned to record room

Announced

12.08.2024                                                                

Sd/-

 (AMRINDER SINGH SIDHU)

PRESIDENT

 

 

Sd/-

 (B.M.SHARMA)

MEMBER

as