District Consumer Disputes Redressal Commission ,Faridabad.

Consumer Complaint  No.289/2021

 Date of Institution: 03.06.2021.

Date of Order:11.10.2022.

1.       Shri Vishal Jindal R/o Flat bearing No.1202/Mantova, Sector-86, Faridabad, Haryana – 121002.               

2.       (i) Dr. B.K.Singh, S/o Shri Kedar Singh,

(ii) Babita Singh W/o Dr. B.K.Singh

Both R/o flat bearing NO. 1201/Mantova, Sector-86, Faridabad, Haryana – 121002.

3.       Sh. Shekhar Budhani, r/o Flat bearing No. 1202A/Mantova, Sector-86, Faridabad, Haryana – 121002.

4.       Mr. Parul Sethi W/o Sh. Mohit Sethi R/o flat bearing NO. 1201A/Mantova, sector-86, Faridabad, Haryana – 121002.

5.       Mrs. Leela Wati Suman W/o Shri Subhash Suman r/o flat bearing NO. 1201A/Siena, Sector-86, Faridabad, Haryana – 121002.   

                                                                   …….Complainants……..

                                                Versus

1.                M/s. Omaxe Heights (Faridabad) Resident Welfare Association , located at: Sector-86, Faridabad – 121002, Haryana.

                   Corporate office at:

Local Shopping Complex 7, Kalkaji, New Delhi – 110 019.

2.                Nimbus Harbor Facilities Management Pvt. Ltd., through its Directors having its registered office at: H.305, Sushant Shopping Arcade, Sushant Lok, Phase-1, Gurgaon – 122002, Haryana.

                                                                   …Opposite parties……

Complaint under section-12 of Consumer Protection Act, 1986

Now  amended  Section 34 of Consumer protection Act 2019.

BEFORE:            Amit Arora……………..President

Mukesh Sharma…………Member.

Indira Bhadana…………Member.

PRESENT:          Sh.  Vishal Jindal, Applicant/complainant in person alongwith Sh. Rakesh Kumar, Advocate.

                             Sh.  Abhishek Pareek, counsel for opposite party No.1.

                             Opposite party No.2 ex-parte vide order dated 21.9.2022.

ORDER:  

                             The facts in brief of the complaint are that  opposite party No.1was the Residents Welfare Association of Omaxe Heights, Sector-86, Faridabad who was authorized for managing day to day problems of the residents, organizing events, managing facilities in the apartments and complexes and safeguarding the rights of the unit holder in “Omaxe Heights”, Faridabad situated at Sector-86, Faridabad.  The opposite party No.2 was the maintenance agency appointed by the opposite party No.1 for the regular maintenance of towers (including but not limited to “Mantova” and “Siena” towers) situated in Omaxe Heights, Sector-86, Faridabad.

                   The class of Duplex herein were the residents of the Two Towers namely Mantova and Siena consisting of 15 floors in each tower situated at Omaxe Heights, Sector-86, Faridabad, Haryana.  The Omaxe tower consists of total 40 towers out of which two towers had been allocated towards the Economic Weaker Section of the society and the remaining 38 towers consists of various flats of 1 BHK, 2 BHK of total admeasuring 1250 sq. ft., 3 BHK admeasuring 1850 sq. ft. 4 BHK of admeasuring 2350 sq. ft. and Duplex (Penthouse) admeasuring 4700 sq. ft.  The present complaint was being brought up on behalf of all the Duplex resident sin “Mantova” tower and “Siena” Towers. The said two towers consists of 15 floors.  Initially the top four floors of were also flats of 4 BHK, however, the same were later on converted into duplex after making mechanical changes in these towers.  At the time of allotment of the residential units of “Mantova” and “Siena” towers the drawings that existed and which was approved upto 4 BHK only.  The duplex were never planned nor approved at the initial stage, however, subsequently the drawing of the said units were modified and 4 BHK flats were converted into duplex resultantly four duplex in each tower i.e. total 8 flats were constructed.  The builders of the said projects later on further modified the design, drawings of “Mantova” and “Siena” tower by adding 4 more duplex in each tower.  Accordingly, the  total number of duplex were increased to 16 in both the towers.  The occupants and the residents (including but not limited to the complainants) of the duplex had initially applied for 4 BHK flats only.  However, the builders, promoters by modifying the drawings of the said two towers merged the floors on 12^th and 13^th floor as well as on 14^th and 15^th floor respectively due to which the penthouses/duplex were increased to 16 in number instead of 8.  Consequently, the allottes who book 4 BHK flat on the 12^th floor of the said two towers were allotted the duplex upon the increased sale consideration as per the agreed per sq. ft. charges.  At the time of handing over of the possession of the property it was unequivocally confirmed and assured by the management to some of the members of Duplex residents that the CAM and other incidental charges should always be charged on 4 BHK basis only (i.e. on the area of approx. 2400 sq.ft.) and the charges should not differ agents their assurances.  The management in this regard had also issued letters to some of the duplex owners separately.  However, in that case ground of parity would prevail and for that purpose all the Duplex residents would be entitled to seek benefit of the same.  It was also pertinent to stat that initially all the residents of the Duplex (Penthouses) flats were reluctant in opting for the duplex as the area was surplus which was not required/applied by them and secondly they were being made to pay additionally which was over and above to their budget.  In addition to the said reasons one of the major reason was that with the increased area the exorbitant CAM & other allied charges must go with the penthouse as the same got almost double in the area as compared ot the area of 4 BHK flats.  After the completion of the project the maintenance of the entire society was taken care by a maintenance agency named as M/s. Facility Plus Management Private Limited which was one of sister company of M/s. Omaxe Limited.  Initially M/s. Facility Plus Management Pvt. Ltd. Levy the CAM (Common Ara Maintenance) charges on the area of Duplex (i.e. approx. 4727 sq. ft.) but in parity with consideration of 4 BHK flat residents i.e. @ of 2.38/- per sq. ft. alongwith Rs.0.12/ per sq. ft.  Pursuant to the bills received by the residents of the duplex, strong reservations were made for challenging the demands made by the earlier maintenance agency for the total area of 4727/- sq. ft.  The Facility Plus Management System Private Limited adhering to the reservations and demands of the residents of the duplex subsequently refunded the said amount which was over charged over and above the respective area of 4 BHK flats.  It further came as a rude shock to the class of the duplex owners, where the management of the Maintenance Agency of the Omaxe Heights, sector-86, Faridabad was slipped into the hands of opposite party No.1 who subsequently engaged the opposite party No.2 for the said purpose.  The class of Duplex residents were shocked to know that in complete violation of the  assurances and representations made by the builder at the time of allotment, the duplex owners were asked to pay not only for the 4727 sq. ft. area, but even the basic per sq. ft. rate was also got enhanced.  The opposite parties were not even providing quality of services to the class of Duplex residents of which they were claiming huge charges.  As a result of which the residents of duplex were bearing the CAM charges @ Rs.18,000/- (approx.) per month, on contrary the 4 BHK residents were bearing a sum of Rs.8,000/- (approx.) per month.  It was relevant to note that the said charges were over and above to the electricity and water charges.  In this regard several representations, letters were issued to opposite party No.1 to which no heed was paid to.  After much persuasion a meeting was held on 17.05.2020 whereby the opposite party No.1 had also agreed to charge maintenance charges on 4 BHK area basis from the Duplex residents, however shockingly the opposite parties even after resolving the said issue had again started charging exorbitant CAM charges from the class of duplex residents.  Adding further  misery to it, it might also be noted that the collection of maintenance charges from class of Duplex of two these towers i.e. Mantova and Siena were far more than in comparison with collection raised form the other residents of these two towers.  It was germane to note that the Omaxe Society where the class of Duplex residents  resides was a very huge society and the maintenance charges ought to have been far more realistic and cheaper as compared to the other society in the vicinity.  In contrary the respective maintenance agencies of the other societies in the vicinity were providing best and proper services and even charging far lesser amount as compared to the opposite parties. Opposite parties even after receiving such an exorbitant amount on account of maintenance charges failed to deliver quality of service to the class of Duplex residents inasmuch as the services provisioned by the opposite parties were imperfect, deficient.   The reluctance of opposite parties can be concerned by the fact that the class of duplex residents on innumerable occasions approached the opposite party No.1 seeking redressal of their common grievance of deficiency of service an d for reconsideration and refund of CAM charges in compliance of the mandate of the assurances and letters given by the builder, promoters to which the opposite parties did not pay any attention and without considering the requests and representations of the class of duplex residents arbitrarily kept on generating the bills by imposing exorbitant charges on increased area (i.e. Duplex Area).The aforesaid act of opposite parties amounts to deficiency of service and hence the complaint.  The complainant has prayed for directions to the opposite parties to:

a)                order newspaper advertisement to implead all such consumers having commonality of interest or grievance against the opposite parties as raised in the present complaint.

b)                declare that the opposite parties are unlawfully charging exorbitant CAM and BUA charges form the clas s of Duplex residents.

c)                levy CAM charges as per the assurances and representations made at the time of the sale agreement/builder buyer agreement (i.e. only on the basis of 4 BHK area).

d)                charge CAM charges at lower side and by due following the industrial norm with quality of services from all the aggrieved class of duplex residents of “Mantova and Siena towers of the society.

e)                render the books of accounts, list of expenditure and all other relevant documents to the class of duplex residents regarding the charges of services being levied by the opposite parties.

f)                 subject to the allowance of prayer (e) above directed the opposite parties to refund the excess Common Area Maintenance (CAM) charges collected till date form the class of Duplex residents of Mantova and Siena towers on the basis of Duplex area being arbitrary, irrational and unlawful.

g)                restrain the opposite parties form increasing the CAM charges arbitrarily and irrationally.

h)                restraining the opposite parties by directing them not to harass the class of duplex residents by discontinuance of maintenance and other essential services.

i)                 remove the deficiency in services as mentioned in the complaint.

j)                 restraining the opposite parties not to raise further bills of maintenance from the class of Duplex residents of Mantova and Siena towers without removing the deficiency of services as mentioned in the complaint.

k.                conduct the inspection of the lifts so that it would also work on top floor of each duplex in “Mantova and Siena towers.

l.                 appoint professional and competent manpower of the maintenance purposes.

m.               Award Rs.2,00,000/- to each aggrieved members of class of duplex residents for gross negligence and deficiency in services on account of arbitrary levying an irrationally uplifting the CAM amount in contravention to the assurances given at the time of the allotment and without providing quality of services;  Further for not resolving the dispute despite various complaints and representations made by the class of duplex residents .

n.                 pay Rs. 2,00,000/- as compensation for causing mental agony and harassment .

o)                 pay Rs. 1,50,000 /-as litigation expenses.

2.                Opposite party No.1  put in appearance through counsel and filed written statement wherein Opposite party No.1 refuted claim of the complainant and submitted that  taking the interest of justice, the opposite party No.1 submitted that the resident welfare association had been constituted by all the resident members for the welfare of all of the members flat owners and all of them jointly sever themselves for no profit and no gain basis.  It was submitted that para No.5 from  (b) to (h) do not relate to the opposite  party No.1.. In column(i) opposite party No.1 submitted that subsequent to the constitution of the residents welfare association and its consequent registration all of the resident-members of the association decided to perform the job of maintenance of the housing society and the scope of work of maintenance include security, housekeeping, horticulture, civil work and civil maintenance, inside repairing of flats, maintenance of exterior and for the area used by all the resident members commonly etc. accordingly, the opposite party was appointed by the opposite party No.1 with consent of all of the resident-members of the opposite party No.1 and after complying the due process of inviting and examining tenders the opposite party No.2 was appointed to provide the service of maintenance of repair. Security, electrical work, plunbing and various other interior repairing services and the opposite party No.2 raise monthly bill for the services so provided to all of the resident members which include the complainants at par with the owners of 2 BHK, 3 BHK, 4 BHK and duplex and penthouse.  It had been further decided by all of the members of the opposite party No.1 that the monthly rate for maintenance should be calculated according to the total monthly expenses divided by the total area of the entire society of that the maintenance cost should be shared equally by all the flat owners in the ratio of the area occupied by each flat owners and no any discrimination had been done amongst 1 BHK, 2BHK. 3 BHK.4 BHK and duplex owners.  It was submitted for the necessary appreciation that the charges were calculated on the basis of total cost of maintenance per month which was divided by the total area (in sq. ft.) of the society so that equal formula was arrived and all of the residents of the society contribute to it on the basis of area occupied by them separately. The area which was occupied was depending upon the size of the flat and there was no discrimination for charging and the per sq. ft. rate was equal for all residents.  It was further submitted that no discrimination had ever happened with the present complainants. It was denied that para 5(i) were false, fabricated and misconceived inasmuch as it was mentioned just because the complainants did not have any complaint with regard to the quality of services provided to all the resident-members.  The opposite party No.1 was an association  of all the resident members constitute by all the resident members for the welfare of all the resident members.  Opposite party No.1 submitted that the charges were calculated on the basis of total cost of maintenance per month which was divided by the total area (in sq.ft.) of the society so that equal formula was arrived and all of the residents of the society contribute to it on the basis of area occupied by them separately.  The area which was occupied was depending upon the size of the flat and there was no discrimination for charging and the per sq. ft. rate was equal for all residents.  It was submitted that as far as question of assurance was concerned no any such assurance had been given by the opposite party to any of the resident-members including the complainants, moreover if there was any assurance as claimed by the complainants, such purported assurances were not in knowledge of the opposite party No.1 and were entertained between the developer/builder and the complainants exclusively, hence it could not be made binding on the opposite party No.1. Opposite party No.1 being the association of resident-members including the complainants, it could not cause any discrimination amongst its member and in the present case also, no discrimination had happened amongst the complainant and other resident members.  It was submitted that the complaint was barred by limitation as envisaged under section 69 of the Act ibid. Opposite party No. 1 denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.

3.                Opposite party No.2  put in appearance through counsel and filed written statement wherein Opposite party No.2 refuted claim of the complainant and submitted that the answering opposite party had been providing its due services of Facility Management at the project named “Omaxe heights”, Sector-86, Faridabad as per the agreement dated 4.10.2019 and there had never been any complaint against the answering opposite party at all and no kind of unfair trade practice or deficiency of service could be attributed upon the answering opposite party and hence the answering opposite party was wrongfully impleaded in the present complaint and was entitled to be deleted from the array of the parties at the very threshold.  The complainants by way of the present complaint seem to be claiming  lower rate of maintenance charges due to some alleged concession given by the developer, however, the same did not concern the answering opposite party.  The charges were levied by the opposite party No.1 and the developer was not a party to the present complaint. Hence, the complaint was neither tenable nor  maintainable .Opposite party No. 2 denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.

4.                The parties led evidence in support of their respective versions.

5.                We have heard learned counsel for the parties and have gone through the record on the file.

                   To establish his case the complainant  has led in his evidence, Ex.CW1/A – affidavit of Vishal Jindal, Ex.CW1/1 (colly) – Buyer’s  Agreement, Ex.CW1/2 (colly) letter dated 28.03.2016,  Ex.CW1/3 -  minutes of meeting held on 17.5.2020, Ex.CW1/4 – letter dated 22.09.2020 regarding common area maintenance (CAM) charges/penthouses, located at Mantova Tower, Omaxe Heights, Sector-86, and Greater Faridabad, Ex.CW1/6 – Tax invoice cum monthly statement, Ex.CW1/7 – invoice,, Ex.CW1/8 – letter dated 13.11.2019 regarding CAM charges on penthouse, Ex.CW1/9 – letter dated 21.11.2019,Ex.CW1/10 – invoice dated 01.09.2020, Ex.CW1/14 (2 pages) – emails dated 22.8.2022, Ex.CW1/11 – Total chargeable area with CAM amount,, Ex.CW1/12 -  Water requirement as per ISI and MOEF BIS (Bureau of Standard), Ex.CW1/13 (colly) email dated 13.08.2022, Ex.CW1/14 – email dated 22.08.2022, Ex.CW1/15 – email dated 07.08.2022, Ex.,CW1/6 (colly) letter dated 24.08.22,  Ex.CW1/17 – Copy of excel sheet indicating the same alongwith HUDA approved drawings, Ex.CW1/18 – website of

                   Despite availing several opportunities, evidence  on behalf of opposite party No.2 has not been filed.  Case called several times since morning but none appeared on behalf of opposite parties Nos.1 & 2.  Therefore, opposite parties Nos.1 & 2 were hereby proceeded against exparte vide order dated 21.09.2022.

6.                Learned counsel for opposite party No.1 filed an application for setting aside exparte order dated 21.09.2022.  Learned counsel  for the complainant appended no objection on the abvoesaid application.  Heard.  In view of the no objection appended by counsel for the complainant, application for setting side exparte order dated 21.9.2022 on behalf of opposite party No.1 was hereby allowed, subject to payment of costs of Rs.1000/-. Cost paid.

                   Counsel for the opposite party No.1strongly agitated and  opposed.  As per the evidence of the opposite party  No.1  Ex.DW-1/A – affidavit of Vikram Khatri, Ex.D-2 –Omaxe Heights (Faridabad) Resident  Welfare Association, Ex,D-4- order dated 19.01.2021, Ex.D-5 – letter dated 06.07.2022, ExD-6 – Appendices to the First Schedule, Ex.D-8 – Buyer’s agreement,, Ex.D9 – Haryana Govt. Gaz. (Extra), Mar.28,2012, Ex.D-10  Haryana Apartment Ownership Rules, 1987.

7.                Counsel for the complainant argued that the complainants are the Duplex residents in “Mantova” and  “Siena” towers in project at Omaxe Heights situated at Sector-86, Faridabad, Haryana vide Ex. CW 1/1. At the time of handing over of the possession of the property it was unequivocally confirmed and assured by the management to some of the members of Duplex residents that the CAM and other incidental charges shall always be charge don the area of 4 BHK basis only (i.e. on the area of approx.2400 sq. ft.), not on the area of Duplex and the charges shall not differ against their assurances.   The management in this has also issued letters to some of the Duplex owners separately vide Ex.CW1/6.  The same was agree by opposite party NO.1 in minutes vide Ex.CW1/3. The said understanding is also binding upon the opposite parties.  Further, ground of parity will prevail and for that purpose all the Duplex

 residents will be entitled to seek benefit of the same.  Earlier the maintenance of the entire society was taken care by one M/s. Facility Plus Management Private  Limited.  Initially M/s. Facility Plus Management Pvt. Ltd., levy the CAM (Common Area Maintenance) charges on the area of Duplex (i.e approx 4727 sq.ft.) but in parity with consideration of 4 BHK flat residents i.e. @ of Rs.2,38/- sq. ft. alongwith Rs.0.12/- per sq.ft..  The residents of the duplex made strong observations for challenging the demands so made by the said Maintenance Agency.  Thereafter the excess amount claimed form the Duplex residents were returned by the said earlier agency vide Ex.CW1/2.  When the opposite party came into picture, they again started charging CAM on duplex area basis.  The Duplex residents made strong reservation against it vide Ex.CW1/8.  The said request was declined by the opposite party vide ex.CW1/9.  Various deficiencies in services on the part of opposite parties were highlighted by the Duplex residents/occupants. Some of the instances of deficiency of services on the part of the opposite parties are cited as under:-

i)                 It was represented by the builder/promoter that the duplex owners will have to bear the CAM charges in parity with the 4 BHK flats, the said understanding is binding upon the opposite parties, the opposite party NO.1 in minutes of meeting dated 17.05.2020 has also confirmed the same vide Ex.CW1-3, however, the opposite parties, in complete contravention to the said representations, started charging exorbitant CAM charges from the class of Duplex residents.

ii)                Services provided by the opposite party were deficient and lacks quality of services with regard to the non-providing of the corridor.

iii)               No provisions  for drainage of water segregated  out of the air conditioners; use of poor quality of power cables.

iv)               Unilateral decisions being taken by the opposite party No.1 in appointing the third party maintenance agency i.e opposite party No.2 exorbitant CAM charges without providing any effective services and that too without any rational and basis against the industry norms.

v)                Illegal siphoning of the funds by the opposite party No.1 in connivance with opposite party No.2.

vi)               Failure of the opposite party No.1 to disclose the statement of account s in respect of the charges collected by it in the garb of providing certain services.

vii)              The CAM charges were earlier being charged by the erstwhile maintenance agency @ Rs.2.50/- per sq.ft. from the Duplex residents, however, after the appointment of opposite party No.2, the CAM and BUA charges were being charged @ Rs.3.15/- per sq. ft without providing any additional services vide Ex. CW1/7.

viii)             The societies in the vicinity were charging CAM charges at a very lesser rate as compared to the opposite parties vide Ex.CW1/5.

ix)               The lift does not stop on the 13^th and 15^th floors, there was no maintenance services are provided to the 13^th and 15^th floor of the towers, therefore charging any CAM for that area is unreasonable and amounts to deficiency in services vide Ex.CW1/19.

The Hon’ble Commission has granted an interim relief in favour of the Duplex residents, one of the resident Mrs. Snehlata Bhatia vide letter dated 24.08.2022 had approached the opposite party to issue NOC for execution of the sale deed.  However, despite there was a stay order, the said request was declined by the opposite party NO.1 on 30.08.2022 vide Ex.CW1/6.

The counsel for the complainant further argued that opposite party No.1 has also contended that the assurance of claiming the CAM on 4BHK basis from Duplex residents has never been in the knowledge of the opposite party No.1 as the same was entered between complainants Developer.  In this regard, it is stated that the said fact was very well within the knowledge of the opposite party No.1.  Kind reference of this Hon’ble Forum is drawn toward the mail dated 06.02.2020 (page 97 of the complaint), issued by the  earlier maintenance agency to opposite party No.1 wherein they have agreed to charge CAM from duplex residents on 4 BHK basis and accordingly the excess money claimed have been refunded by them.  The kind reference is also drawn towards the minutes of the meeting dated 17.05.2020 wherein the opposite party No.1 acknowledged the said letters issued by the Developer and agreed to charge CAM on 4 BHK basis form the duplex residents vide Ex. CW1/3.  He further argued that the complainants, have appropriately cited the deficiency in services on the part of opposite  parties supported with the various documents which prove the falsity and incorrectness of the stand taken by the opposite party No.1.  Further, the instances of deficiency in services on the part of the opposite parties have further been cited by the complainant in following manner:

i)The earlier maintenance agency was charging CAM @ Rs.2.38 per sq. ft. whereas the opposite parties are now charging @ Rs.3.15 per sq. ft. vide Ex.CW1/10.  The complainant have filed an excel sheet which indicates the difference in the CAM charges earlier being charged @ Rs.2.38 per sq. ft. and currently being charged @ Rs.3.15 per sq. ft.  The letter of award filed by the opposite party shows that for the current year a sum of Rs.56,89,218/- is being paid to the opposite party No.2 for doing the maintenance work, whereas the monthly collection of opposite party No.1 on account of CAM I is Rs.84,31,599/-.  There is a huge difference of Rs.27,43,033/- on monthly basis, which the opposite parties are siphoning off vide Ex.CW1/11.  In addition to that there are other collections on account of electricity, water, sinking funds etc.

ii)                The CAM charges being charged by opposite party No.1 is in complete contravention and derogation of Faridabad bye-laws. As per the local laws, the rate of wter is 0.2 paise per 1000 liters for one month whereas the amount claimed form the duplex resident sis @ Rs.0.25 per sq. ft vide Ex.CW1/12.

iii)               Recently the Duplex residents got to know that the previous year collection of the opposite party No.1 on account of maintenance was only Rs.8.47 crores, whereas the current year collection is Rs.15.08 crores.  The is an exorbitant increase of 78%, however, the opposite party failed to inform as to where the additional money of rs.6.61 crores is spent.

iv)               The opposite parties despite giving undertakings before this Hon’ble Forum, the opposite parties, on numerous occasions, have threatened the complainants to disconnect the electricity.  In this regard, a warning was also received and accordingly an affidavit was also filed.  Considering the prima facie case in favour of the complainants and duplex residents this Hon’ble Tribunal was pleased to grant interim order.  After receiving the said order the complainants and Duplex residents on numerous occasions approached the opposite party No.1 to furnish the account and for reconsideration of the CAM charges, however the same was of no avail.  In this regard, an email dated 13.08.2022 was also sent to opposite party No.1 to which no response was received.  A corrigendum mail dated 18.08.2022 was also sent vide ex.CW1/13..

v)                The complainants have been able to lay their hands and searched through the website

vi)               It is also pertinent to mention that on an average, per flat per day water consumption is 675 ltr. Taking average of five members in a flat using 135 lts. Per day.  Therefore, the average monthly water consumption per flat comes to 20,250 ltr.  The charges as per the Faridabad Byelaws are 1 paise per 10,000 ltr for one month comes out to Rs.20.25/-.  Whereas the complainants have been paying Rs.025 per sq. ft. i.e Rs.1182.75 per flat.  Therefore, from the above calculation, it is apparent that the opposite party is charging 5840.74% more than the rates prescribed by the Faridabad Byelaws i.e. 1 paise per 10,000 ltrs. Per month vide Ex.CW1/20 & Ex.CW1/21.)

8.                          Counsel for the opposite party No.1 argued that  the present complaint filed by the 05 complainants out of approximate count of 1300 resident-members does not substantiate the word "numerous" as prescribed under Section 35 (1) (c) of the Consumer Protection Act, 2019. At best it was a joint complaint of a few unscrupulous elements than a bona fide complaint in a representative capacity. This was further established even on an ex facie reading of the prayers as the reliefs sought were clearly not in a representative capacity for the entire 1300 resident members but limited to a mischievous discount desired only for the complainants living in residential units labelled as "penthouse". The opposite party no. 1 is an association of flat owners of different sizes viz. 1 BHK, 2 BHK, 3 BHK, 4 BHK and penthouses and there are 16 penthouses in the housing society in question. It was out of these 16 penthouse owners that 5 had filed the present complaint.  All the flats owners (including the complainants) are enjoying various amenities, facilities and the their undivided interest in the common areas ever since they had taken possession of their respective flats. Initially the developer M/s. OMAXE Limited was managing the maintenance of this housing society/ Group housing colony (hereinafter referred to as "GHS") through their agency M/s. Facility Plus Management Private Limited (hereinafter referred to as "Facility Plus). The maintenance charges were charged from the flat owners on the basis of the area of the flat on a fixed rate per square feet so arrived at by the Developer/ Facility Plus. The complainants had mis-represented this Hon'ble Commission by averring that the CAM charges were increased by the opposite party no. I overnight without any intimation to the complainants. In this regard the deponent respectfully place. on record the letter dated 22-10-2018 issued by the erstwhile maintenance agency Facility Plus Management Private Limited. The letter dated 22-10-2018 was a notice issued by M/s. Facility Plus Management Private Limited in the name of the then President of the Opposite Party No. I to arm-twist opposite party no. 1 into meekly submitting to the hike proposed in the monthly maintenance charges from Rs. 2.38/- to 3.81/- per Sq. Ft. which was followed with a threat that if the RWA did not agree to the proposed hike the the services will be withdrawn. w.e.f. 01-11-2018.  It was only when on 22nd October 2018, Omaxe Limited / Facility Plus Management services Pvt. Ltd. threatened to withdraw it's services unless the maintenance charges were increased to Rs.3.81 per square feet that the opposite party no. 1 took the task under compulsion into their hands and engaged opposite party no. 2 after following the due process of floating tender, inviting quotations, examining various tenders/quotations and finally issuing the letter of award for providing enhanced scope of services than erstwhile agency at the rates so ascertained and since then the rate was fixed for all resident-flat owners irrespective of the area occupied by them.

                             It was under such grave circumstances that the opposite party no. 1 stepped in to prevent a sure catastrophe and decided to perform the job of maintenance of the housing society and the scope of work of maintenance include security, housekeeping, horticulture, civil work and civil maintenance, inside repairing of flats, maintenance of exterior and for the area used by all the resident members commonly etc. accordingly, the opposite party no.2 was appointed by the opposite party no. 1 with consent of all of the resident-members of the opposite party no. 1 and after complying the due process of inviting and examining tenders the opposite party no. 2 was appointed to provide the service of maintenance of repair, security, electrical work, plumbing and various other interior repairing services and the opposite party no. 2 raise monthly bill for the services so provided to all of the resident-members which include the complainants at par with the owners of 2 BHK, 3 BHK, 4 BHK and duplex and penthouses. It had been further decided by all of the members of the opposite party no. 1 that the monthly rate for maintenance shall be calculated according to the total monthly expenses divided by the total area of the entire society so that the maintenance cost shall be shared equally by all the flat owners in the ratio of the area occupied by each flat owners and no discrimination had been done to any resident member/ flat irrespective of whether it is a 1 BHK, 2 BHK, 3BHK, 4 BHK or a Duplex.

                             After taking over the charge of maintaining the housing society, the opposite no. I introduced many other services viz:

a. AMCs of DG Sets, HT Panel, LT Panel, Fire Fighting equipements, CCTV, Boom Barriers etc.

b. Cleaning of storm and sewage lines.

c. Pest control services.

d. Civil maintenance work.

 e. The scope of work for the various existing services has been increased.

                   Enhancing the scope of services, the opposite party no. 1 ascertained the most economical Per Sq. Ft. maintenance charges at Rs. 3.03 Per Sq. Ft.. further an amount of Rs. 0.12 (Twelve Paisa only) was introduced as sinking fund which was inclusive of GST etc. which comes to Rs. 3.15/- Per Sq. Ft. against Rs. 3.38/- Per Sq. Ft.  The rate of Rs. 3.15/- (Inclusive of sinking fund and GST) was uniform for all flats irrespective of their areas and all of the facilities were provided to all flat owners irrespective of class of flats without any discrimination.

                   The per square feet rate for charging CAM was same for all of the flat owners and there was no distinction amongst flat owners of different areas. The per square feet rate for charging maintenance was ascertained on the basis of total cost incurred in a month divided by the total area of the entire society. The system / method of charging on a per square feet basis was being followed today in the same manner as was being followed by the predecessor of opposite party 2 namely Facility Plus Management Pvt. Ltd. (hereinafter referred to as "Facility Plus") before the maintenance services to opposite party no. 1 on 1 of September 2019. 

                   Admittedly the duplex were originally independent 4 BHK Flats having independent common areas with an undivided interest which were later converted to duplex through mechanical changes but without any alteration to the common areas enjoyed by them. These Duplexes had approximately twice the consumption with twice the number of bedrooms, washrooms, electrical points etc. than even a 4 BHK flat talkless of a 3 BHK or a 2BHK flat owner. Naturally the water consumption in these duplexes, sewage discharge, Electricity load/consumption, carbon footprints etc. were more. By their own admission they paid higher consideration on a per square feet basis. Even the property tax that was levied by the Haryana Government on these duplex or any size property owner in this society or elsewhere is levied on a per sq. ft. basis. Therefore their objection to pay the maintenance charges at half the rate or a discounted rate was clearly lacking in merit and bad in law besides it being grossly violative of the principles of natural justice and equity.

          The complainant had prayed before this Hon'ble Commission that the monthly CAM charges be charged from them on half of the area. Not only was such a claim/ demand illegal but also grossly prejudicial to the rest of the 1300 odd residents/member flat owners in the Society. Besides in the light of the judgment in India Bulls Centrum (supra) such a plea was patently ludicrous.

                   During the time when Omaxe Limited/Facility Plus Management Services Pvt. Ltd. used to maintain the society the complainants were regularly paying the maintenance charges on the actual area so occupied by them.  Concessions given (if any) were temporary and stand withdrawn had already been proved. The 05 complainants in the instant matter had filed the present complaint relying heavily on reportedly a temporary discount extended to them by the developer M/s. Omaxe Limited / it's maintenance agency Facility Plus both of whom have deliberately not been made a party to this proceeding. Reportedly this temporary arrangement/ discount was with regard to charging of CAM on the area equivalent to 4BHK flats. The grantor of the said discount i.e. M/s. Omaxe Limited had clarified through it's letter dated 06.07.2022 that it had become functus officio after the handing over date. It had further clarified that the said of 50% of the CAM charges in respect of Penthouse Owners was applicable only till the handing over date and that after the said handing over the pent house owners are liable to bear and pay 100% of CAM Charges to the RWA (Opposite Party No. 1) directly.

                   Since the 5 complainants had placed a heavy reliance on a letter from the Builder/ his maintenance agency which makes them a necessary party to the present complaint. However they had deliberately chosen to avoid their presence. It was therefore pertinent to mention that Order I Rule 9 of the Civil Procedure Code, 1908 very clearly specifies that if the case was of 'non-joinder of a necessary party, then such a Suit should be defeated/dismissed. Hence this complaint may be dismissed on that ground alone. M/s. Omaxe Limited (the builder) had handed over the possession of the flats of different sizes at different times in various stages to its numerous allottees and the possession of the 4BHK flats was handed over towards the fag end of such handover whereas, the method/rate at which monthly maintenance charges was being collected right from inception while handing over the possession to the first allottee was the same i.e. on a per square feet basis. The residents of IBHK. 2BHK and 3 BHK had  been paying the monthly maintenance charges on the basis of area of their flat even much before than the penthouse owners who were the last ones to obtain the occupation/possession. In fact most of these penthouse owners (which includes the complainants) had deliberately avoided paying stamp duty to the Government and have come before this Hon'ble Commission without getting their properties registered with the competent authority. It was within the powers of this Hon'ble Commission to direct each of the Complainants to produce the Registration of the penthouses in question or even to inquire whether these penthouses even have a legal sanction / approval from the competent authority.

                   As stated earlier that the complainants were the members of the opposite party no. 1 and were not the consumers qua the opposite party no. 1 and the monthly charges /CAM charges were calculated on the basis of total cost of maintenance per month which was divided by the total area (in sq. ft.) of the society so that equal formula was arrived and all of the residents of the society contribute to it on the basis of area occupied by them separately. The area which was occupied was depending upon the size of the flat and there was no discrimination for charging and the per sq. ft. rate wais equal for all residents. It was further submitted that no discrimination had ever happened with the present complainants.

                   The complaint was barred by limitation as envisaged under section 69 of the Act ibid. It is submitted that the cause of action has arise on dated 12-10-2018 in terms of the admission of the complainant no. I annexed with the present complaint as Doc-3 at Page 92. The letter issued by the complainant no. 1 to the builder/developer Omaxe Limited reveal that cause of action has first arise on 12-10-2018 when the fact of charging the monthly maintenance charges came to the complete knowledge of the complainants on 12-10-2018 then on 01-09-2019 when the rate of Rs. 3.15 per Sq. Ft. was determined and communicated to the complainants whereas the present complaint had been filed beyond the period of two years and not been filed till 11-10-2020. The expression "shall not" in Section 69 is a legislative command to the Commission to examine, ascertain and bar the admission of complaints which have not been filed within the statutory period of 2 years as prescribed in this section. Even otherwise with the intentional and deliberate delay in filing the present complaint the complainants has not filed any application under sub-section 2 of Section 69 of The Consumer Protection Ac

t, 2019 (35 of 2019).

                    M/s. Omaxe Limited had executed Builder-Buyer's Agreement (hereinafter referred to as the "BBA") with every flat owner before executing the sale deed and it categorically mentions that - the monthly maintenance charges would be charged from the flat owners on per square feet basis and Clause 35(a) talks about penal actions to be imposed for non-payment of charges by prescribing thus - "The Flat Buyer(s) shall be liable to pay interest at the rate of 18% per annum for non-payment of any of the charges within the time specified failing which it shall also disentitle the Flat Buyer(s) to the enjoyment of common services including electricity, water etc.

                   Clause XVI. of the Deed of declaration as prescribed under Rule 3 of the Haryana Apartment Ownership Rules, 1987 mandates as follows:-"That no apartment owner of an independent unit may exempt himself from the liability for his contribution towards the common expenses by waiver of the use or enjoyment of any of the general and/or restrict common areas and facilities, or by abandonment of his independent unit".

                   All members including the complainants in the instant complaint were bound by the Bye-laws of the Society- Opposite Party no. 1 vide clause 12 of it's bye-laws. Clause 12(i) mandates that"...every owner of an apartment...shall be under obligation at all time to pay the common maintenance charges and user charges as determined by OHRWA-Opposite Party no. 1 from time to time..."

Whereas Clause 12(iii) dealing with 'Enforcement of obligations', prescribes that -

                   "In case any owner is in arrears of payment of his obligations for a period of 30 days or more, the "Executive Committee" shall be competent to take all measures for the recovery of such arrears of the monthly maintenance charges, or monthly utility bills and other user charges, including coercive measures by taking recourse to disconnection of electricity and water supply to the dwelling unit, blocking it's sewage outflow and denial of access to the use of common facilities including the lifts."

9.                In this complaint, 5 complainants out of 16 penthouse owners filed the complaint with the prayer of enhancement of the CAM charges by the opposite parties in a bad manner with the malafide intention to grab the money from the complainant.  During the course of arguments, Shri A.K.Sharma, President of Resident Welfare association  also present before this Commission.  He admitted

this fact  during arguments that they are collecting the money approx. Rs.84,00,000/- from the society members and 12% is saved for emergency and essential charges and rest of the money is spent on the welfare of the society members.    As per letter dated 28.03.2016 vide Ex. CW1/2 issued by the builder to the Vishal Jindal & Sujata Jindal in which it has been mentioned that “The company hereby agrees to charge monthly Common Area Maintenance (CAM) charges only with respect to 2404.00 sq. fts. Super area (4BHK) instead of 4727.00 sq. fts. Super are of the said unit.”

10.              After going through the evidence led by the complainant Ex.CW1/1 to

CW1/21 in which there are lots of positive evidence in favour of the complainants. Letter dated 28.03.2016 issued by the builder vide Ex.CW1/2(colly)  goes in favour of the complainant and this fact is also admitted by the opposite parties during the course of arguments.    It is also admitted by the opposite parties that the CAM charges charged from the complainant by the opposite parties extra was refunded  back to the complainant.  There is no extra facility for the duplex owner for the increased of CAM charges.  The President of Resident Welfare association argued at length to charge Rs.18,000/- suddenly from the Duplex penthouse owners.  This is unfair to charge more than the double of the CAM charges which were paying earlier. When as per the evidence of the complainant the rental value of the unit is only  Rs.10 to 12 thousand. This is total unfair to charge Rs.18,000/- suddenly.   The counsel for the complainant argued at length that there is no transparency  in the account of the opposite party.

11.               As per the arguments of opposite parties, the earlier maintenance agency was charging CAM @ Rs.2.38 per sq. ft. whereas the opposite parties are now charging @ Rs.3.15 per sq. ft.   The complainants have filed an excel sheet which indicates the difference in the CAM charges earlier being charged @ Rs.2.38 per sq. ft. and currently being charged @ Rs.3.15 per sq. ft.  The letter of

award filed by the opposite party shows that for the current year a sum of Rs.56,89,218/- is being paid to the opposite party No.2 for doing the maintenance work, whereas the monthly collection of opposite party No.1 on account of CAM Iis Rs.84,31,599/-.  There is a huge difference of Rs.27,43,033/- on monthly basis, which the opposite parties are siphoning of. In addition to that there are other collections on account of electricity, water, sinking funds etc.

12.              Counsel for the complainant has placed on reliance the following authorities:

(i)                Sobha Hibiscus Condominium  Vs. Managing Diector, Sobha Developers Limited and Another passed by the Hon’ble Supreme Court in Civil Appeal No. 1118       of 2016 decided on February 14,2020   .

 (ii)              Mr. Vinod Natesan Vs.  Mahindra Park Co-operative Housing Society Ltd. Passed by the Additional Mumbai Suburban District Consumer Disputes Redressal Forum Bandra, Mumbai – 400 051.

Ratio of these authorities are applicable to the facts of the present case

13.              After going through the evidence led by both the parties, the Commission is of the opinion that the complaint is allowed with the direction  to opposite parties  not to charge  CAM charges from the above noted 5 complainants more than 4 BHK as mentioned in the letter dated 28.03.2016 issued by the builder.    Opposite party is also directed to maximum they can enhance Rs.10% of the payment which they are paying earlier from the 11 members of the society only.     Opposite party is also directed to charge the same charges whatever they are charging from the 4 BHK members of society from the complainants.  As per the arguments of the counsel for the complainant, there is no transparency  in the account of the opposite party. The President of opposite party is directed to supply the statement of account  to all the 16 members of society on whatsapp as well as on email.  Opposite party is also directed to pay Rs.5500/- as compensation for causing mental agony  & harassment as well as to pay Rs.5500/- as litigation expenses to the complainant.    Compliance of this order  be made within 30 days from the date of receipt of copy of this order.  Copy of this order be sent to the parties concerned free of costs.  File be consigned to the record room.

Announced on:  11.10.2022.                                (Amit Arora)

                                                                                  President

                     District Consumer Disputes

           Redressal  Commission, Faridabad.

                                                (Mukesh Sharma)

                       Member

          District Consumer Disputes

                                                                    Redressal Commission, Faridabad.

                                                   (Indira Bhadana)

                       Member

          District Consumer Disputes

                                                                    Redressal Commission, Faridabad.