Complainant through Adv. Smt. Nisha Mohol
Opponent absent
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Per : Smt. Geeta S. Ghatge Place : PUNE
// J U D G M E N T //
(12/12/2013)
This complaint is filed by the complainant against the builder/developer for deficient services. The brief facts of the complaint are as follows;
1] that the complainant purchased the flat no. 6 admeasuring 969 sq. ft. built-up area along with covered car parking no. 5 admeasuring 66 sq. ft. and open parking of 120 sq. ft. from Balaji Housing Co. The agreement of the said flat was made on 17/1/2008 and the Deed of Apartment was made on 6/8/2010 between the complainant and the partners of Balaji Housing co. Mr. Prashant Kadam.
2] As per the contention of the complainant the opponent company has issued fraud possession letter, signed by the father of the partners of the opponent company. Further, the complainant alleged that as his office is situated on 3rd floor, it was the essence of the contract that the lift must be in working condition with 24 hours battery/generator back up. But the lift is not yet started. As a result of which the complainant is unable to run or to rent out his office and suffer from the financial loss, even after paying the full purchase amount of flat.
3] It is also alleged by the complainant that, opponent failed to give possession of parking no. 5 in the basement. This parking is given to the watchman without the consent of the complainant. Complainant also alleged that the opponent built illegal toilet in the parking area which was not in plan. The toilet is not connected to any drainage line, which resulted the bad smell in parking. Further the complainant alleged that, as per agreement to sale the opponent will have to provide complainant the open parking no. “A”, but the opponent sold it to someone else. And after several requests by the complainant, the opponent provided an illegal parking on road in front of building, with closing the main entrance of the building. It is also alleged by the complainant that the opponent failed to paint inner as well as outer portion of the premises and failed to provide the Acrylic panel as shown in brochure, proper drainage line, water line, plumbing as a result of which it is inconvenient to enter into gate in rainy season as there is saturation of water in parking area including complainant’s parking area. And due to the failure of providing agreed services within 5 years, complainant has to face financial loss and miserable life, even after payment of full purchase amount for the purchase of the flat. The complainant obtained the loan from ICICI bank paying the interest of the loan but can not use the said premises and also can not take another office on rent to run his business, which causes the mental agony and financial loss to complainant. Hence, it is the complaint of the complainant that in this way, the opponent provided deficient service to the complainant and hence the complainant compelled to file the complaint application. In complaint application, complainant has prayed to start the lift with 24 hours battery/generator backup, to remove the watchman’s possession from parking no. 5 and demanded free possession of the said parking. The complainant also prayed to paint the building from inside and outside, as shown in brochure, to repair the drainage and plumbing and drinking water line to demolish the illegal constructed toilet and also asked for the compensation of Rs. 15,00,000/- for his financial loss, Rs. 4,80,000/- for mental harassment and Rs. 10,000/- for legal charges and also make demand of proper parking no. A, admeasuring 120 sq. ft. as purchased by him. In support of his complaint, he filed affidavit and the documents.
4] The notice of the Forum send to the opponent come with the endorsement “Not Claimed”, hence ex-parte order was passed against the opponent.
5] After considering the pleadings of the complainant, scrutinizing the documentary evidence, affidavit, written argument and hearing the complainant, following points arise for determination. The points, findings and the reasons thereon are as follows,
Sr.No. | POINTS | FINDINGS |
1. | Whether opponent is held liable for the deficient service? | Mr. Prashant Pravin Kadam on behalf of opponent is held liable |
2. | What order? | Complaint is partly allowed |
REASONS AS TO THE POINT NOs. 1 & 2 :-
6] It is the contention of the complainant that he purchased the flat no. 6 on third floor admeasuring 969 sq. ft. built-up along with the covered parking no. 5 and No. “A” admeasuring 66 sq. ft. and 120 sq. ft. respectively. To prove his contention, he filed on record the extract of Index II of agreement dtd. 17/1/2008 and extract of Index II of Apartment Deed dated 6/8/2010 between him and Shri. Prashant Pravin Kadam, partner of the opponent company. Both the extracts strongly supports the above contention of the complainant.
7] The complainant alleged that, in the area of parking no. 5 toilet was built by the opponent without his consent. To prove this allegation the complainant submitted on record the photographs in which it has been seen that one cabin type structure is constructed and as the opponent is remained absent, this allegation is not struck off by the opponent and hence Forum come to the conclusion that, in the area of parking no. 5, the opponent has constructed a structure without the consent of the complainant.
8] Another allegation of the complainant that the opponent failed to provide open parking no. “A’ to the complainant and the opponent sold the said parking to someone else. And provided the complainant an illegal parking on road in front of building, with closing the main entrance of the building, failed to provide proper drainage line, water line, plumbing. But here it is to be noted that the complainant has not bring a single evidence on record in support of above complaints. Hence, it is the opinion of the Forum that these allegations have not
been proved by the complainant. The prayers in connection with the above allegations can not be allowed by the Forum.
9] The next allegation of the complainant is about the lift. It is the contention of the complainant that it was the essence of the contract that the lift must be in working condition with 24 hours battery/generator back up. But the lift is not yet started. But the complainant failed to file the agreement which shows the clause regarding the lift and hence the Forum can not allow the prayer regarding the lift and the financial loss and compensation in connection there with due to the absence of supporting documentary evidence.
10] It is also contended by the complainant that, he obtained the loan from ICICI bank to purchase the flat, but as the lift is not in working condition and as the flat is on third floor, he can not use it or rent out it, but paying installments with interest and thereby suffers from financial loss. But the complainant again failed to brought on record the documentary evidence of the loan obtained by him. Under such circumstances, it is not possible for Forum to rely on the above statement and to grant compensation for financial loss as prayed for.
11] Further the complainant asked for the Acrylic Panel and the paint to inner as well as outer portion of the premises. But it is the opinion of the Forum that, these things are common things for the whole building. So these common demands can not be allowed to a single flat owner. Such type of common remedies, complaint application shall be made by all the flat owners or shall be made by a single flat owner on behalf of all the flat owners in representative capacity. This complaint is not a representative complaint. Hence, the prayer of paint and Acrylic Panel can not be allowed by the Forum.
12] From the above discussion it is the conclusion of the Forum that it is just and proper to direct the opponent to provide to the complainant parking no. 5 as per the extract of Index II of the agreement and Apartment Deed between complainant and Mr. Prashant Kadam, partner of the opponent company. And also it is the conclusion of the Forum that by constructing the cabin type structure in parking no. 5 of the complainant, without his consent, the opponent has provided deficient service to the complainant. And due to this deficiency the complainant has to face inconvenience and the mental agony. So, it is just and proper to grant Rs. 20,000/- as the compensation of inconvenience and mental agony and Rs. 3000/- as the cost of complaint application.
13] The complainant has asked relief against both the partners of the opponent company. But the extract of Index II of agreement and Apartment Deed shows that only Mr. Prashant Kadam was the party to the agreement and Apartment Deed. Hence, only Mr. Prashant Kadam is held liable for the deficient service.
Hence, the Forum answers the points accordingly and pass the following order;
** ORDER **
1. The opponent Mr. Prashant Pravin Kadam
is hereby directed to provide parking No.5
as according to the agreement and Apartment
Deed to the complainant within 6 weeks from
the date of receipt of copy of the order.
2. The opponent Mr. Prashant Pravin Kadam
is further directed to pay to the complainant
Rs. 20,000/- (Rs. Twenty Thousand only)
as a compensation for inconvenience and
mental agony and Rs.3,000/- (Rs. Three
Thousand only) as a cost of the complaint
Application within 6 weeks from the date
of receipt of copy of the order.
3. Copies of this order be furnished to the
parties free of cost.
4. Parties are directed to collect the sets,
which were provided for Members within
one month from the date of order, otherwise
those will be destroyed.
Place – Pune
Date- 12/12/2013
