BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAS NAGAR, MOHALI

                                  Consumer Complaint No.570 of 2014

                                 Date of institution:          10.09.2014

                                             Date of Decision:            23.07.2015

Vinod Puri son of Yograj Puri, resident of Flat No.436, SBP South City, Zirakpur, Mohali, Punjab.

    ……..Complainant

                                        Versus

1.     SBP South City Promoters & Developers Pvt. Ltd. (Corporate Office) village Desumajra, Tehsil Kharar, Chandigarh-Kharar Highway, Mohali, Punjab through its Managing Director.

2.     Singla Builders & Promoters Ltd. (Corporate Office) Village Desumajra, Tehsil Kharar, Chandigarh-Kharar Highway, Mohali, Punjab through its Managing Director.

………. 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 Sardavinder Goyal, counsel for the complainants.

Shri Amandeep Bindra, counsel for the OPs.

(Mrs. Madhu P. Singh, President)

ORDER

                By this common order, we are disposing of 5 other connected complaints as detailed below, as all are having some controversy as well as similar question of facts and law:

                The complainants have filed the complaints under Section 12 of the Consumer Protection for issuing following directions to the OPs to:

(a)    to pay to each complainant Rs.2.00 lacs for delay in handing over the possession;

(b)    to pay to each complainant Rs.1,50,000/- for not providing the facilities of club, gym, swimming pool, park fountains etc.

(c)    to pay to each complainant Rs.1,00,000/- for mental agony and harassment.

(d)    to pay to each complainant Rs.10,000/- as litigation expenses.

                Except for the description of property of the individual complainants and documents thereof, the averments in all the complaints are verbatim regarding the delay in handing over the possession, defects in the individual flats and lack and defective common facilities and amenities as provided to the complainants against the promises made in the brochure and agreement to sell.

                The common case of the complainants is that they individually booked flats with the OPs and entered into agreement regarding their respective flats.  At the time of booking of the flats, the OPs promised to provide various facilities to the complainants. The possession of the flats had been delivered to the complainants with delay but the promised basic and mandatory facilities have not been provided to them.  The OPs have not mentioned in the carpet area in the advertisement and sold the flats on the price quoting super area which tends to be much larger than carpet area which a resident actually occupies, providing less area to the complainant. The flats have not been constructed as per specifications, description and details as mentioned in the agreement/brochure.  There was no electricity, water supply and garbage disposal at the time of handing over the possession. The OPs had not applied for the electricity connection and the complainants had to take the supply through diesel genset resulting in damage to electric appliances. The OPs even failed to install and maintain the lifts and the lifts which have been installed are without backup.  The electric wires are scattered in a pot hole without any fencing or covering.  The walls of the compound are very low and without adequate arrangements for security guards or CCTV Cameras. The OPs are using the lifts to carry garbage, waste and other filthy stuff making the lifts dirty and stinking. The material used in construction is of sub standard and cracks have developed in the wooden doors and framed and on blocks of cements. The lifts does not have safety sensors. The power backup is too defective and often remains off. The parking has not been provided as per agreed terms and conditions.  Partially incomplete white wash of whole project including common balconies, verandah, stairs, upstairs, outer parts of flats are giving a very shabby look.  The club house, gym, swimming pool and park fountains are not operational.  The club house, gym, Mediation, Yoga centre, Library, coffee lounge, party room, Jacuzzi, pool, billiards room, swimming pool related rooms, indoor games are in doldrums. The swimming pool is half built.  The wooden flooring in the flats is getting ejected at many places and the work of ‘jali’ doors, kitchen work, POP, installation of floor tiles, doors, windows, balconies, kitchen slabs, kitchen boxes have not been prepared and installed in a professional manner.  The water being provided is not purified causing health problems to the residents.  The complainants met the Managing Director and other officials of the OPs but nothing has happened till date. The complainants sent letters to the OPs but their grievances have not been redressed.

2.             After the service of notice, the OPs appeared and filed their reply taking preliminary objections that the complaints have been filed to harass and humiliate the OPs and are abuse of process of law.  The flats were complete in all respects and the possession was handed over to the complainants well within time after their satisfaction.  The dispute between the parties if of civil nature and can be decided by the civil court. On merits, it is pleaded that the complainants are not consumers of the OPs.  All the basic facilities so promised have been provided to the complainants.  The complainants defaulted in making the balance payment and taking possession of the flats.  As per the agreement there was provision of extension of 6 months reasonable time for handing over the possession.  The complainants took over the possession after satisfying themselves with each and every aspect of the flat.  The maintenance services have been outsourced to an experience maintenance agency and there is ample arrangement for clean water supply, sewerage treatment plant, security guards, common lighting, electricity supply, Gen Set back up etc.  There are well equipped and high quality elevators installed in each block. The electric wires have been fitted in a proper manner.  The swimming pool, park fountains are fully functional. The parks are beautifully designed. CCTV cameras are already functional in the complex. Denying the averments of the complaint, the OPs have sought dismissal of the complaints.

3.             To support their versions, the parties led their respective evidence.

4.             For the purpose of clarity and brevity, the following table shows the status of delivery of possession as against the promised date of possession:

5.             Admittedly the complainants have purchased the flats from the OPs by paying full consideration of agreed basic sale price as per agreements to sell. As per Clause-9 of the agreement to sell the possession of the flats was to be handed over to the complainants on or before 31.12.2012 and in case the OPs failed to offer the possession by the due date for other reason beyond the control of the Ops, then the Ops shall be liable to pay the complainants compensation @ Rs.5/- per sq. ft. per month of the super area till the date of offer of possession provided the complainants paid all the payments on the date of offer of possession.  Admittedly the complainants have received the physical possession of flats vide Ex.C-4 addressed by the OPs to the complainants and, therefore, as per the complainants there is a delay of about 2 to 10   months in handing over the possession as per table shown above.  The OPs have failed to show any reason refraining them from handing over the possession to the complainants. Further the bald plea of the Ops without any cogent evidence that the complainants have delayed the payment is of no help to the OPs to deprive the benefit of penalty clause to the complainants.   As per clause 9 of the agreement to sell, since it is an admitted position between the parties that there is delay of about 2 months to 10 months in handing over the possession, all the complainants are entitled to penalty clause of Rs.5/- per sq. ft. per month of the super area from the agreed date of 31.12.2012 to the actual date of possession as per table above.  

6.             Further the complainants have alleged that the flats in question suffer from various defects due to inferior quality of material having been used by the OPs, the building has developed cracks in the walls and wood work and the some of the works have been left incomplete like jali doors, POP, floor tiles, doors and windows, the balconies, kitchen slab, kitchen boxes are either not installed or wherein installed are not in a proper manner causing shabby look to the flats. Further as per the complainants the promised basic amenities and facilities are not provided as the lifts installed in the complex are without electricity back up. There is no proper arrangement of electricity, water supply and garbage disposal. The power back up facility is defective.  The parking has not been provided as per agreed and promised terms. Therefore, improper/lack of basic amenities and defective construction has caused damage to the property of the complainants. So much so the complainants have issued legal notice to the OPs to remove the defects and provide all basic amenities and the same remained unanswered in the hands of the OPs.  Hence the complainants have filed the present complaints alleging deficiency in services and praying for removal of defects.

7.             To ascertain the period of delay in possession and admissible compensation to the complainants in the event of delay in handing over the possession beyond the agreed time frame as per agreements to sell, certain dates are important to be looked into. As per  agreement  to sell Ex.C-3 the agreed dated was 31.12.2012 and as per Ex.C-4 the actual physical possession was handed over to the complainant with delay of about 2 to 10 months as shown in table above. Thus, it is crystal clear that there is delay of approximately two months to 10 months in handing over the possession of the property to the complainants and thus the complainants are entitled to compensation as per agreed terms between the parties for the period of delay in handing over the possession. By withholding the compensation amount, the OPs indulged into the unfair trade practice.

8.             So far as usage of inferior quality construction material causing damage to the property of the complainants is concerned, the complainants have not produced any expert evidence in this regard.  The complainants have already taken over the possession of their respective flats and now they are alleging defects in the flats which ground, in our considered opinion, at this stage is not maintainable.

9.             Regarding lack of electricity facility, water supply and garbage disposal facilities etc., the complainants have produced some photographs showing loose electricity wires lying on the ground and near the houses in the vicinity is definitely a matter of concern. The OPs cannot in any manner put the life and liberty of the residents under threat by leaving the loose naked electricity wires. The act of the Ops in this regard is definitely an act of deficiency in service which needs to be looked into at the top priority by the OPs.  

10.           For other allegations, the complainants have not adduced any specific evidence i.e. regarding parking, poor/defective back up, no power back up facility in the lifts etc. Therefore, in this regard the bald allegations of the complainants without supporting evidence are of no help to the complainants.

11.           Thus the complaints deserve to be allowed on two counts i.e. for denying the  agreed compensation to the complainants due to delay in possession by two to  10 months and further causing threat to the life and liberty of the complainants by letting the loose naked electricity wires in the residential complex. Thus, on these two counts the OPs have been found to be negligent in rendering the service to the complainants. The complaints deserve to be allowed on these accounts and complainants deserve to be compensated.

12.           In view of above discussion, all the complaints are partly allowed with the following directions to the OPs:

(a)    in CC No.570 of 2014,  to pay to the complainant, after calculating the  amount @ Rs.5/- per sq. ft. per month of super area of 1510 sq. ft. for the delayed period of possession from 01.01.2013 to 11.06.2013 alongwith interest @ 9% per annum till the date of realisation.

        in CC No.566 of 2014,  to pay to the complainant, after calculating the  amount @ Rs.5/- per sq. ft. per month of super area of 1510 sq. ft. for the delayed period of possession from 01.01.2013 to 02.07.2013 alongwith interest @ 9% per annum till the date of realisation.

in CC No.569 of 2014,  to pay to the complainant, after calculating the  amount @ Rs.5/- per sq. ft. per month of super area of 1260 sq. ft. for the delayed period of possession from 01.01.2013 to 04.07.2013 alongwith interest @ 9% per annum till the date of realisation.

in CC No.571 of 2014,  to pay to the complainant, after calculating the  amount @ Rs.5/- per sq. ft. per month of super area of 1510 sq. ft. for the delayed period of possession from 01.01.2013 to 28.05.2013 alongwith interest @ 9% per annum till the date of realisation.

in CC No.572 of 2014,  to pay to the complainant, after calculating the  amount @ Rs.5/- per sq. ft. per month of super area of 1510 sq. ft. for the delayed period from 01.01.2013 to 30.07.2013 alongwith interest @ 9% per annum till the date of realisation.

in CC No.573 of 2014,  to pay, after calculating the  amount @ Rs.5/- per sq. ft. per month of super area of 1510 sq. ft. for the delayed period from 01.01.2013 to 10.10.2013 alongwith interest @ 9% per annum till the date of realisation.

(b)    to cover the loose naked electricity wires in the residential complex within a period of one week from the date of receipt of a certified copy of this order.

(c)    to pay to every complainant  a compensation to the tune of Rs.25,000/- (Rs. Twenty five thousand only) for mental agony and harassment including costs of litigation.

                Compliance of directions at point (a) and (c) be made by the OPs 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.                           

July 23, 2015.     

                                                                  (Mrs. Madhu P. Singh)

                                                                        President

(Amrinder Singh Sidhu)

Member

(Mrs. R.K. Aulakh)

Member