| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PATIALA. Consumer Complaint No. 410 of 11.10.2018 Decided on: 13.9.2019 Dr.Mrs.Parveen Sharma wife of Dr.Braham Sharma , Flat No.110-B, Garden Heights, Sirhind-Rajpura Bye Pass, Patiala through her husband Dr.Brahm Sharma (Authorized person) …………...Complainant Versus 1. Sachin Gupta, Director, M/s Pavni Buildwell Pvt. Ltd., resident of Hoiuse No.B-107, Sun City, Sector 54, Gurgaon. 2. Isha Gupta, Director, M/s Pavni Buildwell Pvt. Ltd., resident of House No.B-107, Sun City, Sector 54, Gurgaon, Pin 122001. 3. Estate Manager, Garden Heights, Sirhind By-pass Road, Near DMW, Patiala. …………Opposite Parties Complaint under Section 12 of the Consumer Protection Act, 1986. QUORUM Sh. M.P.Singh Pahwa, President Smt. Inderjeet Kaur, Member Sh.B.S.Dhaliwal, Member ARGUED BY Sh.Braham Sharma, Authorized representative of the complainant. Sh.Amit Jain,Advocate, counsel for OPs. ORDER M.P.SINGH PAHWA,PRESIDENT - This is the complaint filed by Dr. Mrs.Parveen Sharma, (hereinafter referred to as the complainant), through her husband Dr.Braham Sharma/ authorized person against Sachin Gupta, Director M/s Pavni Buildwell Pvt. Ltd. and others (hereinafter referred to as the OPs).
- Briefly the case of the complainant is that she applied for the purchase of residential flat from the OPs on 1.1.2007, consisting of three bed rooms, three toilets with covered area of 1740 Sq.ft. She paid Rs.2,52,500/- as lump sum of advance towards booking of the flat vide cheque dated 15.1.2007.As per terms and conditions of the agreement, flat was to be well furnished with specifications as detailed in the agreement. Internal and outer facilities like lift, club, swimming pool etc., car parking facility were to be provided to the complainant. The possession letter of the apartment was issued to the complainant on 3.6.2011 and possession was handed over to the complainant.
- It is alleged that on 7.1.2015 to 7.1.2017, the OPs have disconnected power backup connection and water supply connection to the flat on the condition of non maintenance charges till occupation. The OPs have not maintained the building as per promise till date and have not provided central RO system as per brochure. The roads are in damaged condition. OPs failed to provide external or internal maintenance to the complainant. She herself spent the amount from her pocket. No maintenance team has been made by the OPs. The sewerage lines are also not connected with the municipal corporation sewerage pipes.
- It is also alleged that the OPs have taken Rs.52,200/- from the complainant as IFMS maintenance security and have not issued any receipt regarding this amount. In execution case of the order dated 9.4.2013, passed by this Forum, OPs have falsely denied the receipt of the amount of Rs.52,200/-.In February,2018, the execution was decided wherein it was concluded that the OPs have received the amount of Rs.52,200/- and have not provided all the facilities and amenities which was assured by the OPs.The OPs have also paid Rs.20,000/-less. The site still has unconstructed area.The construction is not completed by the OPs till date. They are not entitled to receive excess maintenance charges from the complainant than they have received from other persons.
- It is also pleaded that the OPs have charged Rs.1.50 Paisa per sq.ft. from 2012-2013.They have made demand vide invoice dated 15.10.2016 of Rs.2,70,946, which was deposited by the complainant on 21.12.2016 vide receipt dated 21.12.2016.The OPs have not provided facilities since 7.1.2015 to 1.1.2017 but have charged the amount of Rs.2,29,697/-.Complainant is entitled for the refund of this amount with interest @24% per annum from 1.1.2013.The OPs have also withdrawn facility from 19.3.2018, which is amounting to Rs.24,466/-.
- On this background of the facts, the complainant has alleged deficiency in service on the part of the OPs.
- It is also pleaded that due to this Act of the OPs, the complainant has suffered mentally as well as physically. For these sufferings, the complainant has claimed compensation to the tune of Rs.90,000/-.By this complaint, the complainant has prayed for directions to the OPs to restore the water facility; to refund the amount of Rs.2,54,163/- and Rs.90,000/-as mental agony. Hence this complaint.
- Upon notice, OPs appeared through counsel and contested the complaint by filing written reply. In reply, the OPs raised preliminary objections that the complainant has concealed that a demand notice dated 30.1.2018 was served upon her and a demand of Rs.34200/- was made on account of IFMS charges which was due against her since 28.3.2007. Now a sum of Rs.75234/- was outstanding against her till 30.1.2018 which she failed to deposit. The OPs had no other remedy than to disconnect the water supply to the flat when the complainant failed to deposit the due amount inspite of various notices .That as per Sections 17 and 35 of Punjab Apartment and Property Regulations Act,1995, this Forum has no jurisdiction to hear and try the present complaint.The complaint is liable to be dismissed with special costs of Rs.5,00,000/-.That without availing remedy under Punjab Apartment and Property Regulation Act,1995, the complainant has filed the complaint. As such it is not maintainable and is liable to be dismissed with costs.The complainant played fraud and concealed material facts by concealment of real and detail facts.The complaint is an abuse of process of law and has been filed intentionally on the basis of false facts and concocted story with malafide intention to lower down/spoil the goodwill of the OPs.The complainant has concealed that earlier she filed suit for permanent injunction and managed to get exparte injunction order on 20.3.2018 whereas water connection was already disconnected on 12.3.2018.Then she filed contempt petition before Civil Judge, Jr.Division,Patiala and thereafter she filed suit for mandatory injunction in the court of Civil Court at Patiala.The application under Order 39 Rule 1&2 CPC was allowed vide order dated 24.9.2018 whereby the complainant has been directed to deposit 50% amount of demand notice dated 30.1.2018 but she has not deposited any part of the amount. Thereafter, the complainant filed CWP No.17942 of 2018 in the Hon’ble High Court, which is now fixed for 28.11.2018.She has concealed filing of both the suits , contempt petition in the Hon’ble High Court and all the litigations from this Forum.Hence the complainant is liable to be penalized with special costs of Rs. one lac.
- On merits, the OPs have denied all the averments . It is denied that the OPs have not maintained the building or have not provided central RO system.The complainant has been compensated for RO system in previous complaint.It is denied that the OPs have failed to provide internal or external maintenance.
- It is further mentioned that the construction is under process.The sanction has been granted by the Municipal Corporation but the residents are depositing the amount for sewer connection.As such it is pending .The demand has also been raised by the company from the residents.After controverting all the averments, OPs prayed for the dismissal of the complaint.
- In support of his complaint, the authorized person of the complainant tendered in to evidence his affidavit, Ex.CA, copy of allotment letter, Ex.C1, copy of order dated 9.4.2013, Ex.C2, copy of e-mail, Ex.C3, copy of maintenance receipt, Ex.C4, copy of invoice, Ex.C5, copy of tax invoice, Ex.C6, copy of receipt dated 14.3.2018,Ex.C7,copy of tax invoice, Ex.C8, copy of brief on maintenance, Ex.C9, copy of power of attorney, Ex.C10.
- The OPs tendered into evidence affidavit of Mandeep Maanju, Ex.OPA, copy of demand notice, Ex.OP1, copy of plaint, Ex.OP2 , copy of order dated 20.9.2018,Ex.OP3, copy of order dated 24.9.2018,Ex.OP4, copy of CWP, Ex.OP5, copy of status report, Ex.OP6, copy of order of Municipal Corporation, Ex.OP7.
- We have heard the authorized representative of the complainant and the ld. counsel for the OPs who have reiterated their stand as taken in their respective pleadings and detailed above.We have carefully gone through their submissions.
- In view of the averments of the complainant and version of the OPs, it is considered appropriate to examine the matter in the light of reliefs claimed by the complainant:
Restoration of water supply facility: The complainant has prayed for restoration of the water supply facility. This complaint was filed on 11.10.2018.The complainant has not revealed any other litigation in this connection. The OPs have placed on record copy of the plaint, Ex.OP2 filed by the complainant in the court of Civil Judge, Sr. Division, Patiala. This suit was for permanent injunction restraining the OPs from disconnecting the water supply to her flat. This plaint was withdrawn on 20.9.2018 on the ground that the OPs have disconnected the water supply. Ex.OP4 is another copy of plaint filed by the complainant on 18.4.2018 for mandatory injunction to get restore the water supply to her flat. During the suit application for temporary injunction moved by the complainant was also decided vide order dated 24.9.2018 (Ex.OP4) whereby the OPs were directed to restore the water supply on deposit of 50%charges by the complainant. Ex.OP5 is copy of the writ petition filed by the complainant before the Hon’ble High Court. The main prayer in this writ petition was also directing the OPs to immediately restore the water connection which has been illegally cut. It proves that the complainant filed three different suits/writ petitions for getting restore the water connection and the civil suit and writ petitions were also pending at the time of filing of this complaint. These facts were not disclosed in the complaint. It is well settled that the remedy before this Forum is alternative remedy. The complainant has to avail any one remedy at one time. But the complainant was availing parallel remedies at the same time. In these circumstances, the complaint on this point was not maintainable - There is another aspect of the matter also. Authorized representative of the complainant has admitted that the water supply has been restored to the complainant but on deposit of some charges.
As the water supply has already got restored , therefore, this prayer has become infractuous also. Refund of Rs.2,54,163/-: - The complainant has produced on record receipt, Ex.C4 to prove that he had paid the amount of Rs.2,70,946/- on 21.12.2016 on account of maintenance charges upto 31.12.2016. This amount was deposited by the complainant in response to the invoice dated 15.10.2016,Ex.C5 issued by the OPs. The complainant has not impugned this invoice. The complainant has deposited the amount without any protest.In these circumstances the complainant is estopped from claiming refund of this amount.
Compensation on account of mental agony and harassment: - The net conclusion is that the complaint is without merit and hence stand dismissed.
- Certified copies of this order be sent to the parties free of cost under the Rules. Thereafter, file be indexed and consigned to the Record Room.
ANNOUNCED DATED:13.9.2019 B.S.Dhaliwal Inderjeet Kaur M. P. Singh Pahwa Member Member President | |
