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

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Mrs. Renu Khanna (NRI), House No. 3563, Sector 23-D, Chandigarh.

              ---Complainant

Vs

M/s Silver City Housing & Infrastructure Limited, through its Director, Regd. Office, House No. 89, Sector 8-A, Chandigarh. 

---- Opposite Party

BEFORE:    SH. LAKSHMAN SHARMA             PRESIDENT

MRS.MADHU MUTNEJA               MEMBER

           SH.JASWINDER SINGH SIDHU        MEMBER

Argued By:    Sh. Kamal Satija, Counsel for Complainant.

Sh. Sohan Singh, Supervisor on behalf of Opposite Party.

PER MADHU MUTNEJA, MEMBER

1.        The instant complaint has been filed against the Opposite Party with multifarious allegations regarding delay in handing over the possession of a property and quality of construction of the said property.

          Factually speaking, the Complainant had booked House No. 1481, IV floor, Greens, at Silver City Complex, N.A.C. Zirakpur, District Mohali, for a sum of Rs.26.60 lacs, which included car parking Rs.1.50 lacs, Power Back-up Rs.1.00 lac and Club Membership Rs.20,000/-. The mode of payment was 1^st installment of 10% on 12.4.05 (at the time of booking), 2^nd installment of 10% on 12.5.05 (within 30 days of booking), 3^rd installment of 25% on 12.7.05 (within 3 months of booking), 4^th installment of 25% on 12.11.05 (within 7 months of booking), 5^th installment of 25% on 12.3.06 (after 11 months of booking) and on final notice of possession 5% + stamp duty charges + registration and other charges applicable on 30.9.06 (Annexure A-1).

          The Complainant deposited a sum of Rs.26.60 lacs and entered into an agreement with the Opposite Party on 16.12.2005 (Annexure A-2). The payments were made as per the follow schedule of payments prescribed: -

          As per the terms of agreement, the possession of the house was to be handed over on 30.09.2006. However, the Complainant has alleged that she was kept waiting till January, 2010, to get possession. The Complainant has stated that the final payment of Rs.1,33,000/- was deposited by her on 12.03.2009 with the Opposite Party with the intention of getting the possession letter, but the possession was given only in January, 2010. Meanwhile, the Complainant was surprised to receive various bills from the Opposite Party for maintenance charges from September 2008 onwards and power back-up from September 2009 onwards (Annexure A-8 to A-15).

          The Complainant has alleged that Silver City had priced their flat at Rs.26.60 lacs in the year 2005, when similar flats were available in the area of Zirakpur for Rs.8.00 to Rs.12.00 lacs. However, the Complainant had made this investment being attracted by the brochure issued by the Opposite Party. But when the Complainant received possession, she found various discrepancies in the construction.

          According to the Complainant, the flat has numerous defects i.e. the walls are uneven and thus give an ugly look, the painting is improper, there is dampness in the walls which produces bad smell, all doors windows and their locks are defective. The quality of wood used for doors and frames is very bad and hence cannot properly close the doors and bolt in the doors. The sanitation fittings in the wash rooms need replacement as they have not been fitted properly. Even the quality of material used is cheap. Balconies and kitchen are unskillfully made. If a nail is put into the wall, cement comes out. Thus, according to the Complainant, the whole apartment needs to be renovated to make it livable, which would require a huge amount of money.       

          The Complainant has accordingly filed the present complaint, seeking the following relief:-

(i)      Interest @24% on the amount of Rs.25.27 lacs from 01.10.06 to the date of possession;

(ii)    Repair all un-even walls and replace wrong fittings or in the alternative pay Rs.5.00 lacs lump sump for re-construction;

(iii)  Withdrawing their bills/ letters of payment of maintenance charges and power back-ups;

(iv)    A sum of Rs.10.00 lacs as compensation for causing mental agony and problems faced by the Complainant by visiting the Opposite Party again and again due to delay in possession;

2.        Notice of the complaint was sent to Opposite Party seeking their version of the case.

3.        The Opposite Party in reply has taken the preliminary objection that the complaint is time barred and this Forum has no authority to adjudicate on maintenance amount or interfere in the fixation of period of allotment. Also, the complaint is not maintainable due to non-joinder of necessary parties, as the Opposite Party does not own any maintenance agency. The Complainant has levelled serious allegations against the Opposite Party, without any cogent evidence. The complaint is also in violation of the terms & conditions of the agreement which has an arbitration clause, which reads as under: -

“Any dispute arising out of the terms and conditions of this agreement including the interpretation and validity of the terms thereof and the respective rights and colligation of the parties shall be settled by mutual decision failing which the same shall be settled through the arbitration of the designated persons/ person to the appointed by the Company (M/s Silver city Housing & Infrastructure Ltd.). Arbitration proceedings shall be governed by Arbitration Act, 1998 or any statutory amendments/ modifications thereof for the time being in force.”

          On merits, Opposite Party has admitted the sale of flat to the Complainant. They have stated that the agreement was executed on 21.12.2005, but the Complainant was not kept waiting till January 2010, for possession, although the promised date of possession was 30.9.2006. The delay in delivery of possession was on account of the fact that the Complainant, who is an NRI, had sought certain alterations in the flat, which were beyond the specifications agreed upon with the company. These include the following: -

(i)      Shower area in bath room is to be covered by sliding glass doors or has separate enclosures; 

(ii)    Provisions of 2-3 split AC’s;

(iii)  Water inlet or outlet provisions for Washing Machine in the Bath Room;

(iv)    Mixer should be fixed in Wash Basin and Bath Room along with Kitchen;

(v)      Provision of water in the balcony also;

(vi)    In the Kitchen hot plate is to be retained under the Granite and above granite only burners will be there;

          After these alternations were carried out, the Complainant was called to check the same. The Complainant again vide letter dated 8.3.2006 asked for more alterations, but these were not possible as the Complainant had not provided any money for the same. The Complainant did not turn up for taking the possession of the property. It was with great efforts that in the month of February, 2008, the brother-in-law of the Complainant was made aware about the money spent on the alterations, but payment for the same was not made with the excuse that the money had to be arranged from abroad. Opposite Party has alleged that in fact, it was the Complainant who did not have time and money to take possession of the flat due to which she kept on putting off the matter. Ultimately, Mr.K.K.Khanna, brother-in-law of the Complainant took possession of the flat in March, 2009. The flat was checked by him and after being satisfied with the construction, fittings and fixtures, a request for possession of flat was made by the brother-in-law of the Complainant.

          Opposite Party has also stated that alternations made in the flat were not charged for from the Complainant. Also, the bills raised and received by the Complainant were correct and due to the Opposite Party. The Complainant has paid the maintenance bills only from April 2009 to April 2010. Opposite Party has denied that similar flats were available in the vicinity for lesser amount. Opposite Party has also specifically denied every allegations about the quality of construction made by the Complainant in Para 7 of their reply. As per the Opposite Party the allegations are false and fabricated without any truth. Opposite Party has also denied that possession of the flat was claimed by the Complainant with her own efforts and that Silver city failed to meet the promised date i.e. 30.9.2006. As per the Opposite Party, it was the Complainant who was requested to take possession many times, but she kept putting off the matter as she is an NRI and was unable to visit India on frequent basis. Even in March, 2009, possession was handed over to the brother-in-law of the Complainant after great efforts by the Opposite Party. The Opposite Party has also denied the allegations of the Complainant that the Opposite Party had utilized the funds paid by her for their own purpose. Opposite Party further denied that the house was not worth living and has also denied the allegations that the car parking is not worthy as well as the allegations about the poor back-up. Further, the Opposite Party has denied that the club is yet to be construction. In fact, the Club is already in existence and is in use within the premises of Silver City by the name of Richmond Gardens. All other material contentions of the complaint were controverted. Pleading that there was no deficiency in service on their part, a prayer has been made by Opposite Party for dismissal of the complaint.

4.        During the course of proceedings, the Complainant was permitted to place on record recent photographs of the flat in the shape of additional evidence to prove her claims. Thereafter, on application of the Opposite Party, permission was granted to the Opposite Party to hand over a questionnaire to the Complainant regarding the allegations in the complaint. The questionnaire was accordingly filed. The Complainant filed reply to the questionnaire. 

          In reply to the questionnaire the Complainant has emphasized that she was present in India on the date of promised possession i.e. 30.09.2006, but possession was never offered to her. The Complainant has also denied that possession was delivered to her on 9.3.2009. In fact, it is her brother-in-law Mr. K.K. Khanna, who was authorized to take possession of the flat, without any discrepancies and shortcomings, for which blank signed papers had been given to him. As the said brother-in-law was under threat of cancellation, he under the constrained circumstances converted blank document into Annexure R-5 (authority letter from Renu Khanna authorizing him to take possession of the flat), at the spot. As the flat was not complete, keys were handed over again to the Opposite Party for removal of the short comings, the same day and the flat remained with the Opposite Party, till Jan. 2010, when possession was given. The Complainant has also given details of her visit to India, as well as the fact that the photographs clicked by her and placed on record as evidence were taken a week prior to the filing of the application for additional evidence. The Complainant has reiterated that she was present in India on 30.09.2006 and had sufficient funds to pay to the Opposite Party in case possession was offered. Also, she has paid maintenance charges before April, 2009.   

5.        The Complainant also filed replication wherein the averments as contained in the complaint have been reiterated and those as alleged in the written statement by the Opposite Party have been controverted.

6.        Parties led evidence in support of their contentions.

7.        We have heard the learned counsel for the parties and have perused the record, along with written arguments advanced by both the parties.

8.        As per the allegations of the Complainant in the complaint, as well as in the written arguments, the Complainant has made payment of Rs.26.60 lacs for the flat as per the demand of the Opposite Party. However, possession was delayed and handed over to her only in January, 2010. According to the Complainant, the Opposite Party has utilized the amount paid by her during the intervening period. The Complainant has also alleged in the complaint that besides delay in possession by the Opposite Party, they have also erred in charging her for maintenance and power back-up charges, which should not have been demanded before the date of giving possession. She has given details of bills raised by the Opposite Party. However, details of payment if made by her against these bills or receipts for payment against these bills are not part of record of this case.                    

9.        Again the Complainant has also alleged that the property handed over to her suffers from various structural defects, which have been enumerated in detail. Suffice to say that the quality of construction is not upto mark and the Complainant is extremely dissatisfied with the property handed over to her by the Opposite Party. The Opposite Party in reply to each and every averment of the defects in the property has stated that the Complainant is an N.R.I and she wished for various alterations in the property, which they have also undertaken, without having to pay any extra money. This fact has not been denied by the Complainant. However, the contention of the Opposite Party that the Complainant claims about bad quality of construction is not tenable in the light of photographs placed on record by the Complainant as additional evidence. It is, thus, evident from the averments made in the complaint as well as other documents on record that the Complainant has not only been handed over delayed possession of the property, but the quality of construction in the property is not to her satisfaction. However, there is no “Brochure” on record to show the “measure of satisfaction” or any promised quality against which the Complainant is comparing the quality of construction provided to arrive at the numerous allegations made by her in the complaint. The Opposite Party in reply has not specifically denied any of the allegations, but has only stated that the flat has been altered to suit the requirements of the Complainant and delay in possession is due to the time needed to make the said alterations. Opposite Party has also stated that they were ready to hand over the possession of the flat to the Complainant on time, but she was not available in India at the relevant time. Also, she did not have the sufficient money to make payment for the property purchased. This averment of the Opposite Party seems to be absurd, as the Complainant has given details of all the payments made by her and the Opposite Party has not shown any bills raised for the property or even the alterations/ additions made, which the Complainant does not seem to have paid for.

          However, the photographs placed on record by the Complainant definitely show that the quality of construction and paint is not of good quality. There seems to be dampness on the walls; the sanitary fittings in the wash rooms do not seem to be of good quality; cement is coming out of the walls and there are cracks everywhere, as is evident from a bare look at the photographs. Also, the car parking is constrained and there is accumulation of water on the floor. There is seepage seen on the ceiling of the bath room. The drains in the bath room have already developed cracks while more cracks are visible in different parts of the building also. Even the paint is coming out and from the photographs it is evident that the property would not be comfortable to live in, especially for an N.R.I. the Complainant has also alleged that all doors windows and their locks are defective; the quality of wood used for doors & frames is very bad and need replacement and the quality of material is cheap; balconies and kitchen are unskillfully made. 

10.       The Opposite Party has stated that the complaint does not lie in terms of the agreement between the parties. However, we disagree with this contention of the Opposite Party, as the Complainant can definitely pursue this matter against them for the deficiency in service and for faulty construction, as well as poor quality of property made available. The Complainant has made a prayer for interest on the amount deposited from the date possession was due, till the date of actual possession, besides compensation for the bad quality of construction. She has also made request that the Opposite Party be directed to repair the building or in the alternative to pay Rs.5.00 lacs for re-construction. The Complainant has also asked for withdrawal of bills for maintenance charges and power back-up.

          As per the agreement, the purchaser is required to pay the maintenance charges. However, the agreement between the parties does not make any reference to the time from which the Complainant is required to make payment for the maintenance/ power back-up charges. Hence, in our opinion, whatsoever has been made applicable to the other allottees is also applicable to the Complainant and we cannot pass any orders for refund of this amount by making her case different, as it would encourage a plethora of litigation.

          The interest claimed by the Complainant on the amount deposited is also not payable, as the amount would have been utilized by the Opposite Party for the construction of the property handed over to her. The Complainant has not pointed out any clause in the Agreement under which she is entitled to the said relief.

11.       With regard to the allegations for repair of the property, we agree with the contentions of the Complainant that the property handed over to her is not upto the mark. She has claimed a sum of Rs.5.00 lacs for re-construction and Rs.10.00 lacs towards compensation for harassment and mental agony. In the given situation, we feel that the Complainant is definitely entitled to some benefit. We accordingly, allow this Complaint, with a direction to the Opposite Party to pay a consolidated sum of Rs.4,00,000/- to the Complainant for the repair of the property, as well as compensation for harassment and mental agony caused to her. The Opposite Party shall also pay Rs.10,000/- to the Complainant as cost of litigation.

12.       The above said order shall be complied within 45 days from the date of its receipt, failing which Opposite Party will be liable for an interest @12% per annum on the awarded amount of Rs.4,00,000/-, from the date of this order, till it is paid, besides paying Rs.10,000/- as cost of litigation. 

13.       Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

28^th September, 2012.                                           

Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

Sd/-

(MADHU MUTNEJA)

 MEMBER

Sd/-

(JASWINDER SINGH SIDHU)

MEMBER