Punjab

Ludhiana

CC/14/218

Yash Paul - Complainant(s)

Versus

Omaxe Limited - Opp.Party(s)

RK Chand adv

11 Feb 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No: 218 dated 04.03.2014.                                                        Date of decision: 11.02.2022.

 

1. Yash Pal Gupta aged 69 years son of Sh. Kahan Chand Gupta,
2. Rohit Gupta aged 41 years son of Sh. Yash Pal Gupta, both residents of House No.163, Major Gurdial Singh Road, Civil Lines, Ludhiana.                                                                                      ..…Complainants  
3.  

1. Omaxe Limited Registered Office Royal Residency Opposite Sterling Resorts Pakhowal Road, Ludhiana through its Director/Managing Director.
2. M/s. Facility Plus Management Private Limited, New Delhi C/o.  M/s. Omaxe Limited Registered Office Royal Residency Opposite Sterling Resorts Pakhowal Road, Ludhiana through its Director/Managing Director                                                                                                                                                                           …..Opposite parties 

Complaint under Section 12 of the Consumer Protection Act.

QUORUM:

SH. K.K. KAREER, PRESIDENT

SH. JASWINDER SINGH, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainants            :         Sh. R.K. Chand, Advocate.

For OPs                          :         Sh. Nitin Kapila, Advocate.

 

ORDER

PER K.K. KAREER, PRESIDENT

1.                Briefly stated, the case of the complainants is that they applied for allotment of flat bearing No.2, Block-M in the project Royal View Homes situated at Village Thakarwal, Ludhiana developed by OP1. In this regard, the agreement dated 20.11.2012 was executed between the parties. The basis sale price of the flat was Rs.43,25,265/- with Rs.3,14,400/- as additional cost and Rs.80,500/- as maintenance and security. Thus, the total cost of the flat was Rs.47,20,165/-. The possession of the flat was delivered to the complainants on 25.01.2013. The additional cost included Rs.20,000/- per KVA on account of power back up installation, external electrification cost and firefighting equipment cost @ Rs.40/- per sq. feet amounting to Rs.64,400/-, car parking for Rs.1,10,000/-, the servant store room on terrace for Rs.1,00,000/-, interest free maintenance security @ Rs.50/- per sq. feet amounting to Rs.80,500/-. The complainants made full payment to OP1.

2.                It is further alleged that initially the total area of the allotted plot was 1610 sq. feet, but OP1 claimed the area as 1637 sq. feet when the possession was delivered and also enhanced the cost of the flat qua the additional 27 sq. feet. The complainants  paid the enhanced amount of Rs.1,21,531/-  towards the cost of flat, interest free maintenance security of Rs.1350/-, electricity equipment cost Rs.1040/- and extra meter cost Rs.10,500/- qua enhanced area of the flat.

3.                It is further alleged in the complaint that OP1 was supposed to provide all the facilities in the flat.  Electricity wires were to be provided so that the electricity connection could be obtained from Punjab State Power Corporation Limited for which a sum of Rs.65,750/-  has been charged from the complainants. OP1 had also charged Rs.40,000/- for power back up but no external electrification system has been installed by OP1 and as a result no electric connection could be obtained from PSPCL and the electricity is being supplied through generators. OP1 was to adjust the maintenance services from the interest earned out of the interest free security amount received from the complainants and the other flat owners. Moreover, no service tax was leviable on the lump sum maintenance charges. Though telephone connection sockets have been installed in the flat, but no wires have been provided for the installation of the telephone connection which is utmost necessity for obtaining internet facility as fast and cheap internet facilities are available through landline telephone connection which is otherwise necessary for day to day needs. OP1 has further not mentioned dimensions of the flat in the draft of the proposed sale deed neither the complainants  have been supplied with a copy of the draft of the proposed sale deed. Moreover, OP1 is asking the complainants to obtain no objection certificate from OP2 which is a maintenance agency appointed by OP1 without consent of the flat owners. As per law, till the society is framed by the owners of the flat, OP1 is duty bound to provide the maintenance services to the flat owners from the interest earned from the interest free security obtained from the complainants and other flat owners. Therefore, OP1 has wrongly appointed the maintenance agency without consent of the flat owners and the said agency is demanding maintenance charges @ Rs.1.50 per sq. feet plus service tax which the complainants  are not bound to pay. Moreover, the amount of Rs.81,850/- received towards maintenance security deposit is required to be kept in a separate bank account and the interest earned from there is to be spent on the various charges such as electricity bill, water charges, security charges etc. Apart from this, OP1 is demanding a sum of Rs.12,000/- from the complainants  for the execution of sale deed without disclosing the details of the said charges. The area of the flat has also been wrongly increased from 1610 sq. feet to 1637 sq. feet and in the proposed sale deed also, the area does not match with the area mentioned in the site plan. All these things amount to deficiency of service on the part of the OPs. In the end, it has been requested that i) OP1 be directed not to compel the complainants to obtain NOC from OP2 before the execution of the sale deed; ii) OP1 be directed to maintain the interest free security in a separate head and utilize the interest earned from the security to meet the expenses of the flat; iii) OP1 be directed to provide telephone wiring to enable the complainants to install the telephone connection for internet facilities; iv) OP1 be further restrained from charging any service tax on the maintenance charges; v) OP1 be further directed to supply the copy of the proposed sale deed to the complainants; vi) OP1 be restrained from claiming a sum of Rs.12,000/- from the complainant as DDVSC charges for the execution of the sale deed; vii) OP1 be directed to install the electric wiring system to facilitate the issuance of the electric connection by the PSPCL; vii) OP1 be further directed to refund the excess amount charged in respect of the excess 27 sq. feet of the area at the time of giving possession of the flat to the complainants and ix)  OP1 be further made to pay compensation of Rs.2,00,000/- and litigation expenses of Rs.20,000/-.

4.                The complaint has been resisted by the OPs. In the joint written statement filed on behalf of the OPs, it has been, inter alia, pleaded that the complaint is without any cause of action and is nothing but a gross abuse of process of law and further that the complaint is barred by limitation. On merits, it has been pleaded that the area indicated in the agreement dated 24.11.2012 was a tentative one. As per clause 4 of the agreement, it was stipulated that the built up area given in agreement is tentative subject to change  as per directions of sanctioning authority or Architect or Structure Engineer of the company which may result in change (decrease/increase) in the area of the said unit. The area of the unit allotted to the complainants increased from 1610 sq. feet to 1637 sq. feet and the cost of the unit also increased proportionately as per terms and conditions of the agreement. The temporary possession of the unit was handed over to the complainants on 25.01.2013 and since then they have been enjoying the same. The complainants have also paid the cost of the excess area.

5.                It has further been pleaded in the written statement that as per agreement  entered between the parties, OP1 has already fixed and installed electric wires  for the usage and consumption of the unit holders and more than 200 families are already residing there and they are being supplied 24 hours power supply with power back up. Separate meters have also been installed and the allottees are making the payments in respect of the electricity consumption made by them. OP1 has already applied for electricity connection with Punjab State Power Corporation Limited.

6.                As regard the security deposit of maintenance, it has been pleaded by the OPs that as per the terms and conditions of the agreement, the security deposit received from the complainants and other allottees was to be kept with the builder and no interest was payable on the said amount. The security was paid to the OPs with an understanding that the said amount would be used in respect of any defaults by the allottee in the payment of electricity, maintenance and other charges. As regards the telephone connection facility, the OPs have pleaded that they are already tying up with BSNL and other telecom companies. According to the OPs, for execution of the sale deed, NOC is required to be obtained from the maintenance agency which has been appointed after consultation with the allottee and all the allottees are regularly paying the maintenance charges as per clause 41 (a) of the agreement. It has however, been denied if the maintenance services to the allottees are to be provided from the interest earned from the security deposit. According to the OPs, the amount of Rs.12,000/- as DDVSC charges has been rightly claimed for the execution of the sale deed as per clause 34-B of the agreement. The other allegations made in the complaint have been denied as wrong and a prayer for dismissal of the complaint has also been made.

7.                In evidence, the complainant No.1 submitted his affidavit as Ex. CA as well as affidavit of Sh. Vishal Pathania, Finance Secretary of M/s. Omaxe Royal View Homes Resident Welfare Association as Ex. CB along with documents Ex. C1 to Ex. C35 and closed the evidence.

8.                On the other hand, learned counsel for the OPs tendered affidavit Ex. RA of Sh. Gaurav Sharma, authorized representative of OPs as well as affidavit Ex. RB of Sh. Mandeep Singh Cheema, authorized representative of OPs along with document Ex. R1 to Ex. R16 and closed the evidence.

9.                We have heard the learned counsel for the parties and the written submissions made on the part of the parties and have also gone through records.

10.              Firstly, the grievance of the complainants is that OP1 is asking them to obtain NOC from OP2 before the execution of the sale deed and further that OP1 had absolute no right to appoint OP2 for maintenance purposes. However, in this regard, the counsel for the OPs has referred to clause 41 (a) of the agreement Ex. C1 which provides that the company may, after offer of possession of the said unit to the buyer, hand over the maintenance of the said project to anybody corporate or an association as the company may in its sole discretion deem fit. It is further stated in clause 41 (a) that the maintenance, upkeep, repairs, lighting, security etc. of the project building will be undertaken by the company or its nominated maintenance agency and the buyer agrees and consents to the said arrangements. In view of the clause 41 (a) of the agreement Ex. C1, it cannot be said that OP1 was not entitled to appoint OP2 as maintenance agency. Since OP2 is looking after and undertaking the work of maintenance of the flats, the buyers are supposed to pay the maintenance charges to the maintenance agency. It is, therefore, cannot be said to be unreasonable if OP1 is insisting on the complainants to obtain NOC from OP2 which otherwise is necessary to ensure that OP1 has paid up to date maintenance charges to OP2 without which sale deed cannot be executed. Therefore, the grievance of the complainant in this regard is neither genuine nor sustainable.

11.              Secondly, it has been claimed by the complainants that OP1 is liable to maintain the area under the scheme out of the interest which might be accruing from time to time on the security deposit of Rs.80,500/- obtained from the complainants. However, as per clause 41 (b) of the agreement Ex. C1, OP12 has discretion either to utilize the maintenance security as advance maintenance charges or not, but there is no stipulation in the agreement Ex. C1 that the recurring maintenance charges are to be met out of the interest drawn on the maintenance security advance deposit by the complainants or other allottees. Here it is worthwhile to mention that no doubt there is a stipulation that if an allottee does not pay the maintenance charges, the same can be adjusted from the maintenance security advance, but that cannot be taken to mean that the complainants or the other allottees are not supposed to pay any maintenance charges after they have paid one time maintenance security advance. Therefore, even this contention raised by the complainants is not tenable and is liable to be repelled.

12.              Thirdly, the grievance of the complainants is that OP1 has not provided the telephone wiring system to the complainants and other flat owners which is otherwise necessary for providing internet facility. In this regard, the case of OP1 is that as per the terms of the agreement Ex. C1, it was never agreed by the OPs that the landline connection or internet connection service would be provided to the allottees. The complainants have not been able to point out anywhere in the agreement that it was the obligation of the OPs to provide landline facility. Therefore, in the absence of any stipulation in this regarding in the agreement Ex. C1, OP1 cannot be compelled to grant this facility of landline telephone connection which now a days has become obsolete technology and people in general are not opting for landline connections  with the advent of mobiles and the wireless internet equipments. Therefore, even this part of the claim raised by the complainants cannot be allowed.

13.              Fourthly, it has been claimed by the complainants that they are not liable to pay any service tax on the service charges claimed by OP1. As discussed above, there is no clause in the agreement Ex. C1 that the complainants or the other allottees would not pay any service charges or the service charges are to be provided from the interest on the advance maintenance charges taken by the OPs from the allottees. Therefore, all the allottees including the complainants are liable to pay service charges and service tax as the service taxes are levied by the Government and not by the OPs. Therefore, it cannot be said that the complainants are not liable to pay service tax on the service charges being imposed/claimed by the OPs towards the maintenance of different facilities in the flats.

14.              The next claim of the complainants is with regard to the supply of the copy of proposed sale deed to be executed in favour of the complainants with regard to the flat allotted to them. The OPs have already placed on record a copy of the draft of the proposed sale deed which is Ex.R16 on the file. The counsel for the complainants has not been able to point out any defect in the proposed sale deed or that some necessary clauses have been inserted in the proposed sale deed. Therefore, it cannot be said that the draft sale deed Ex. R16 is defective or is not as per the initial agreement between the parties. Besides the covered area, common area and super area of the flat is distinctly mentioned in the proposed sale deed and no evidence has been led by the complainants that the area of the flat mentioned in the proposed sale deed Ex. R16 is not as per the dimensions of the flat.

15.              As regard the grievance that the Ops are demanding Rs.12,000/- as DDVSC charges of the sale deed, the same can also not be held unreasonable considering the fact that this much amount is usually spent while getting the sale deed prepared from the deed writer and for the execution and registration of the sale deed. The complainants have further claimed in the complaint that OP1 is liable to provide the electricity wiring system to facilitate installation of electricity connection by the Punjab State Power Corporation Limited. In this regard, the counsel for the OPs has pointed out that the necessary wiring has already been completed and separate meters have been installed in all the plots. In this connection, the counsel for the OPs has further pointed out that presently separate sub meters against each flat has been installed and the residents are consuming electricity and paying bills as per sub meter installed in each of the flats. In this regard, the counsel for the OPs has referred to Ex. C8 vide which electric meter No.11 with zero consumption and diesel generator meter No.RSPCL 51360 also with zero reading were installed at the time when the possession was handed over to the complainants. This amply proves that electricity fittings and sub meter has already been allotted to the complainants, which the complainants are already using.

16.              As regards the refund of the amount of Rs.1,21,531/- as cost of excess area of 27 sq. feet is concerned, it is worthwhile to mention that as per the agreement Ex. C1, more particularly clause 4 and 5 of the agreement, in case of increase in the allotted built up area at the time of possession, the allottee was required to pay the cost of the increased built up area and if there was any decrease, the amount received in excess were to be refunded. In the instant case, OP1 charged the complainants for tentative area of 1610 sq. feet. However, subsequently, at the time of possession, the actual area was found to be 1637 sq. feet with the result that the complainants were made to pay the additional cost of Rs.1,21,531/-  along with certain other charges. Considering the fact that it was stipulated in the agreement Ex. C1, that the area mentioned in the agreement was tentative which was subject to change in accordance with the clause 4 of the agreement Ex. C1 that company may make such variations, additions, alterations etc.  in its sole discretion considering proper for the project or as may be required by any other authority, Govt. agencies or the Architect resulting in change of the area of the flat. Thus, the built up area of the unit could be changed subject to direction of Sanctioning authority, Architect or Structural Engineers. No evidence has been led by the complainants that the area of 1637 sq. feet has not been allotted to them. Even otherwise, the complainants have already voluntarily paid the amount qua the extra area of 27 sq. feet. Therefore, no ground is made out for issuing a direction to OPs to refund the same.

17.              As a result of above discussion, it is held that the complainants have failed to prove any deficiency of service on the part of the OPs. Resultantly, the complaint fails and same is hereby dismissed. However, there shall be no order as to costs. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

18.              Due to rush of work and spread of COVID-19, the case could not be decided within statutory period.

 

                             (Jaswinder Singh)                            (K.K. Kareer)

                    Member                                           President

 

Announced in Open Commission.

Dated:11.02.2022.

Gobind Ram.

Yash Pal Vs Omaxe Limited                        CC/14/218

Present:       Sh. R.K. Chand, Advocate for complainants.

                   Sh. Nitin Kapila, Advocate for OPs.

 

                   Arguments heard. Vide separate detailed order of today, the complaint fails and same is hereby dismissed. However, there shall be no order as to costs. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

 

                             (Jaswinder Singh)                            (K.K. Kareer)

                    Member                                           President

 

Announced in Open Commission.

Dated:11.02.2022.

Gobind Ram.