BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No. 22 of 2015
Date of institution: 12.01.2015
Date of Decision: 17.09.2015
Rajesh Dani son of Pawan Kumar Dani, resident of H.No.2750, Phase-7, Mohali and presently residing at Flat No.890 (Top Floor), Gillco Heights, Mohali.
……..Complainant
Versus
1. M/s. Gillco Developers and Builders Pvt. Ltd. through its Director/Partner/Proprietor Ranjit Singh Gill son of Naib Singh, site office at Gillco Valley, Sector 127, National Highway No.21, Mohali (Punjab).
2nd Address:
M/s. Gillco Developers and Builders Pvt. Ltd. through its Director/Partner/Proprietor Ranjit Singh Gill son of Naib Singh, having its registered office at House No.2169, Phase-7, Mohali (Punjab).
2. Ranjit Singh Gill son of Naib Singh, resident of House No.2169, Phase-7, Mohali (Punjab).
3. D.S. Dhaliwal, Administrative Officer, M/s. Gillco Developers and Builders Pvt. Ltd. Office at Gillco Valley, Sector 127, National Highway No.21, Mohali (Punjab).
………. Opposite Parties
Complaint under Section 12 of the
Consumer Protection Act, 1986.
CORAM
Mrs. Madhu. P. Singh, President.
Shri Amrinder Singh Sidhu, Member
Mrs. R.K. Aulakh, Member.
Present: Shri Aseem Gupta, counsel for the complainant.
Shri Mohinder Singh, counsel for the OPs.
(Mrs. Madhu P. Singh, President)
ORDER
The complainant has filed the present complaint seeking following direction to the Opposite Parties (for short ‘the OPs’) to:
(a) pay him Rs.3,50,000/- for giving less area of 70 sq. ft. to the complainant, with interest thereon @ 18% per annum from February, 2012 till payment.
(b) rectify the discrepancies in the apartment No.890 (top floor) with 2/3 roof rights (3BHK) with super area of 1450 sq. ft.
(c) pay him Rs.1,19,625/- alongwith interest @ 18% per annum from Feb. 2012 till actual payment on account of delay in handing over possession of the flat.
(d) pay him Rs.1,65,000/- alongwith interest @ 18% on account of rent paid by the complainant due to delay in handing over possession of the flat.
(e) pay him Rs.5,00,000/- towards loss and humiliation suffered by the complainant.
(f) pay him Rs.1,00,000/- for unfair trade practice and deficiency in service, mental harassment and agony.
(g) pay him Rs.25,000/- towards litigation.
The case of the complainant is that believing the complex of the OPs as peaceful place, he applied for allotment of a residential apartment/flat by paying Rs.1.00 lac as booking amount vide cheque dated 20.10.2010. A copy of the payment plan indicating payment schedule alongwith conditions for delivering possession and site plan are Ex.C-2 and C-3 respectively. The OPs vide allotment letter dated 29.11.2010 Ex.C-4 allotted apartment/flat No.890 (top Floor) with 2/3 roof rights (3BHK) with super area 1450 sq. ft. in Gillco Height Independent Floors, situated at Gillco Valley, Sector 127, Mohali for a total consideration of Rs.38,98,500/- including car parking, IFMS and Club charges and Rs.1,62,400/- towards service tax, totaling Rs.40,60,900/-. Thereafter apartment buyers agreement dated 29.11.2010 Ex.C-5 was also executed between the parties and further a tripartite agreement Ex.C-6 was executed between the complainant, the OPs and Housing Development Finance Corporation Limited as the complainant had approached HDFC Bank for financial assistance of Rs.30.00 lacs. Thereafter as per the payment schedule, the complainant paid a total sum of Rs.40,60,900/- including service tax to the OPs. As per the agreement and commitment, the OPs assured to handover the possession within a period of 12 months with grace period of 2 months from the date of allotment i.e. by 01.02.2012. It was agreed that for delay in possession the OPs were liable to pay amount @ Rs.5/- per sq. ft. per month beyond the period stipulated in the payment schedule. The complainant continued to visit the OPs but the possession has been finally delivered to him on 15.06.2013 with delay of 16½ months. During this period, the complainant sent e-mail dated 04.03.2012 to the OPs regarding civil amenities as the flat was not ready for possession. The OPs in email dated 24.05.2013 sent to the complainant admitted that the flat was ready for possession since January, 2013. However, upon receipt of this email the complainant visited the site and found that the flat was still under construction and offer of possession was mere an eye washes. The OPs delivered the possession to the complainant on 15.06.2013 after receiving complete full and final payment. The complainant had been living on rent and planned to shift in his flat in February, 2012 but due to delay had to live on rent till possession. Thus he had to spent Rs.1,65,000/- on account of payment of rent @ Rs.10,000/- per months for 16-1/2 months. After getting possession the complainant found that width/size of the flat as shown in the site plan was not of that standard. The complainant vide his email dated 22.06.2013 asked the OPs to provide the measurement certificate of the flat which has not been provided till date. The complainant himself got measured the super area of the flat from an architect and found that the flat allotted to him was having super area lesser by 70 sq. ft. than the committed space. Due to lesser area the kitchen of the flat has been badly impacted. The OPs have also not provided the club/recreation center inspite of receipt of charges for the same. The flat is also suffering from seepage problem which has destroyed the walls and roof of the rooms. The paint and texture on the walls is peeling off due to seepage. There is shora on the walls which ultimately will spoil the POP work. The complainant sent legal notice dated 25.08.2014 to the OPs but the OPs have failed to resolve the problems of the complainant. Thus, with these allegations the complainant has filed the complaint alleging deficiency in service and unfair trade practice on the part of the OPs.
2. Upon notice the OPs appeared and filed written reply by averring that the complainant did not make the payment within time and he was called on phone to make the payment. As per clause 30 the possession was to be handed over to the applicant, only after receipt of full and final payment. As per clause 6 of the agreement, the complainant was liable to pay rate of interest @ 15% on the delayed payment. There was delay of 434 days in making the complete payment and the complainant was to pay an amount of Rs.1,68,700/- on the delay payment of Rs.9,45,865/- which the complainant has not paid till date. The OPs have already provided super area of 1462 sq. ft. to the complainant against 1450 sq. ft. The complainant was provided the correct calculation and he was wholly satisfied. Even the sale deed of the flat was executed on 10.07.2013 after satisfaction of the complainant about size, construction work and other amenities. Thus, denying any deficiency in service on their part, the OPs have sought dismissal of the complaint.
3. To succeed in the complaint, the complainant proved on record affidavit Ex.CW-1/1 and tendered in evidence documents Ex.C-1 to C-33.
4. Evidence of the OPs consists of affidavit of Paramjit Singh their Senior General Manager Ex.OP-1/1 and description f super area of the flat Ex.OP-1.
5. We have heard learned counsel for the parties and have also gone through written arguments filed by them.
6. The complainant is a purchaser of apartment/flat No.890 (top Floor) with 2/3 roof rights (3BHK) with super area 1450 sq. ft. in Gillco Height Independent Floors, situated at Gillco Valley, Sector 127, Mohali. As per the buyers agreement dated 20.10.2010 Ex.C-1 the complainant was to make payment of the agreed consideration and other charges as per construction linked payment Plan-B Ex.C-2 and the OPs have agreed to make delivery of the possession to the complainant within 12 months from the date of allotment with a grace period of two months i.e. date of allotment 01.02.2012 and the delivery was to be made maximum upto 01.04.2013 and in the event of default, the OPs were to pay Rs.5/- per sq. ft. per month for any delay in offering possession of the flat beyond the period stipulated in the buyers agreement for delivery of possession. Further the complainant has been given the possession on 15.06.2013 when the complainant has paid the outstanding amount of Rs.7,29,865/-. Further against promised 1450 sq. ft. covered area, the complainant has been provided deficient area by 70.00 sq.ft. There is no club facility in existence against which the OPs has charged an amount of Rs.50,000/- as per statement of account Ex.C-7. There is a constant seepage in the flat causing damage to plaster of walls, ceiling and POP, other furniture and fixtures in the flat due to inferior quality of workmanship and material used by the OPs. As per the complainant he has raised all these issues with the OPs to redress the same and despite his having sent the legal notice dated 25.08.2014 by registered post Ex.C-27 to C-31, the OPs have not redressed his grievances and, therefore, he has raised the present complaint.
7. The complaint is resisted by the OPs wherein they have denied the allegations of the complainant. As per the Ops the complainant is defaulter in making the payments by 434 days and despite repeated reminders he has not made the payment and, therefore, he has been levied interest on the delayed payment while handing over the possession to the complainant. The interest amount has been rightly charged from him. Thus, the complainant is not entitled to invoke the penalty clause on account of delay in handing over the possession or recover the rent paid by him from the OPs for the period of delay in handing over the possession. So far as the allegation of deficient area is concerned, as per the OPs instead of promised 1450 sq. ft. area the complainant has been provided additional area than the super area of the flat being 1462 sq. ft. as per Ex.OP-1 to the complete satisfaction of the complainant. There is no delay on the part of the OPs as the possession was to be handed over to the allottees on payment of entire consideration alongwith other dues. The complainant has made the last payment of consideration and other dues on 05.06.2013 and the possession was handed over to him on 15.06.2013 vide Ex.C-21 and further the sale deed has been executed in his favour on 15.07.2013 vide Ex.C-22. The reply of the OPs is silent about lack of club facility and seepage in the flat of the complainant.
8. We have gone through the contents of the application form Ex.C-1 and the buyer’s agreement attached therewith. Clause 30 of the buyer’s agreement pertains to the possession of the apartment which is reproduced here below:
“Possession will be handed over to the allottee (s) only on payment of entire consideration alongwith other dues.”
9. There is otherwise no stipulated time frame mentioned in the buyer’s agreement as has been alleged by the complainant regarding 12 months or two months thereof from the date of allotment of the flat in his favour. Therefore, it is ample clear that once the complainant made the entire payment, he was eligible to have the possession of the flat. As per complainant’s own document Ex.C-21 i.e. possession letter dated 15.06.2013 the complainant himself has made the last payment on 05.06.2013 and got the possession on 15.06.2013. Thus, we do not find any substance in the grievance regarding delay in handing over the possession by 16-1/2 months as alleged in the complaint.
10. Since the complainant has failed to prove his grievance of late delivery of possession, he is not entitled to invoke penalty clause No. 15 of the agreement to recover the amount due under the penalty clause and rent paid by him till he has got the possession on 15.06.2013.
11. So far as deficient area is concerned, the complainant has relied upon the expert report of Shri Puneet Bhandari, Architect Ex.C-32 wherein the Architect has claimed to have personally done the measurement of actual wall to wall area of the complete house and found that the actual floor area is 1004.20 sq. ft. whereas as per OPs layout plan the area should have been 1077.22 sq. ft. Therefore, the area is deficient by 73.02 sq. ft. In support of his report the Architect has also submitted the actual site plan of the flat in question Ex.C-33. Though there is no affidavit of the Architect to prove his report on record, yet the complainant in his affidavit has mentioned about the expert report and actual lay out plan to prove his grievance against the OPs regarding deficient area. In rebuttal to this evidence, the OPs have relied on Ex.OP-1 to show that instead of deficient area, excess area has been provided to the complainant. Perusal of both the reports clearly shows that the OPs have included the area of window chhaja, bathroom chajja, projections over balcony, projections on two sides of windows to show the excess area of 1462 sq. ft. other than the promised area of 1450 sq. yard to the complainant whereas the report of Architect Ex.C-32 shows that the area has been measured from actual wall to wall area of the complete house. Outside projections area or chajja area as measured by the OPs cannot be treated to be part of the promised super area of 1450 sq. ft. as per allotment letter Ex.C-4. Further as per Para 8 of the reply of the OPs, the complainant is fully satisfied with the calculation as per Ex.OP-1 and, therefore, he cannot agitate the issue of providing less area. We have perused Ex.OP-1 and found no satisfactory note incorporated by the complainant on the said document. Therefore, mere bald assertion by the OPs is of no help to show the satisfaction of the complainant in this regard. The complainant has amply proved deficient area from the report of Architect Ex.C-32 and actual site plan Ex.C-33. The OPs have charged Rs.1,58,268/- being the cost of 70 q. ft. area which has been provided less to the complainant at the time of possession. The said amount has been calculated as per sq. ft. are amount of the agreed consideration of Rs.32,90,000/- for 1450 sq. ft. Thus, by providing deficient area than the promised area, the OPs have indulged in unfair trade practice for which the complainant deserves to be compensated.
12. It is admitted between the parties that the club facility charges have been levied by the OPs and paid by the complainant. As per the complainant club facility is missing in the complex and there is no rebuttal evidence by the OPs in this regard. Therefore, the complainant has proved his allegation of lack of club facility for which the OPs have charged Rs.50,000/- from him. The charging of Rs.50,000/- without providing corresponding club facility to the complainant is an act of deficiency in service and unfair trade practice.
13. Regarding use of inferior quality of material in the construction of flat by the OPs causing seepage in the flat and other defects, the complainant has sent an e-mail dated 04.03.2012 Ex.C-18 wherein he has brought to the notice of the OPs regarding civil changes to be made in the flat so that the property can be put to use. The said e-mail has never been responded to and there is no response by the OPs in the written statement in this regard except the plea that once the sale deed has been executed and at the time of sale deed the complainant was satisfied with the size, construction work and other amenities as assured by the OPs and after satisfying himself he has executed the sale deed. Therefore, he is estopped from raising the issue of civil work leading to seepage and consequential damage to his property. The OPs have failed to show whether the issues raised by the complainant in his e-mail Ex.C-18 have been addressed to by them or are still in existence. Even if they have been resolved and after the property is put into use, the complainant has the right to bring it to the notice of the OPs and OPs have an obligation to redress the same as the OPs have charged IFMS from the complainant at the time of handing over the possession to the complainant. The OPs have thus failed in rendering after sale service to the complainant leading to damage to his property and making it ineffective for his full enjoyment. On this account the OPs are held liable for deficiency in service and unfair trade practice.
14. Thus, the complainant has proved his complaint regarding deficient area by 70 sq. ft., non existence of club facility and not able to remove the civil defects leading to seepage in the flat causing damage to his property by the OPs and on all these accounts the complaint deserves to be allowed and the complainant deserves to be compensated for mental harassment and agony and financial loss he has suffered in the hands of the OPs.
15. In view of above discussions, the complaint is allowed with the following directions to the OPs:
(a) to refund to the complainant Rs.1,58,828/- (Rs. One lac fifty eight thousand eight hundred twenty eight only) with interest thereon @ 9% per annum from the date of handing over of possession i.e. 15.06.2013 which was charged from the complainant for the deficient area of 70 sq. ft.
(b) to refund to the complainant club charges of Rs.50,000/- (Rs. Fifty thousand only) with interest thereon @ 9% per annum from the date of receipt till actual refund.
(c) to pay to the complainant Rs.50,000/- (Rs. Fifty thousand only) for not looking into the civil work issues of the complainant leading to seepage in the flat.
(d) to pay to the complainant a lump sum compensation of Rs.25,000/- (Rs. Twenty five thousand only) for mental agony, harassment and costs of litigation.
Compliance of this order be made within a period of thirty days from the date of receipt of a certified copy of this order. Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the file be consigned to the record room.
Pronounced.
September 17, 2015.
(Mrs. Madhu P. Singh)
President
(Amrinder Singh Sidhu)
Member
(Mrs. R.K. Aulakh)
Member
