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

                                  Consumer Complaint No.402 of 2014

                                 Date of institution:          29.05.2014

                                                 Date of Decision:            22.06.2015

Bhushan Kumar Nagpal son of Charan Dass resident of Flat No.301, B-2, Surya Towers, VIP Road, Zirakpur, Tehsil Derabassi, District Mohali.

    ……..Complainant

                                        Versus

1.     Surya Infrastructures and Builders, Registered Office, SCO No.2, Kalgidhar Enclave, Kalka Shimla Highway, Baltana, Zirakpur, Tehsil Derabassi, District Mohali through its Partners/Proprietors/Managing Directors/Promoteres Shri Ram Bhag Mittal and Sanduri Lal Mittal.

        Site Office at Surya Tower, VIP Road, Zirakpur, Tehsil Derabassi, District Mohali.

        Second Address: # 1702, Sector 21, Panchkula.

2.     Shri Ram Bhaj Mittal, the Partner/Promoter/Proprietor (Surya Tower), SCO No.2, Kalgidhar Enclave, Kalka Shimla Highway, Baltana, Zirakpur, Tehsil Derabassi, District Mohali.

        Second Address: # 1702, Sector 21, Panchkula.

3.     Shri Sanduri Lal Mittal,  the Partner/Promoter/Proprietor (Surya Tower), SCO No.2, Kalgidhar Enclave, Kalka Shimla Highway, Baltana, Zirakpur, Tehsil Derabassi, District Mohali.

        Second Address: # 1702, Sector 21, Panchkula.

………. Opposite Parties

Complaint under Section 12 of the

Consumer Protection Act, 1986.

CORAM

Mrs. Madhu. P. Singh, President.

Shri Amrinder Singh, Member.

Mrs. R.K. Aulakh, Member.

Present:    Shri Mohit Jaggi, counsel for the complainants except complaint No.562 of 2013 wherein the complainants are in person.

None for the OPs.

(Mrs. Madhu P. Singh, President)

ORDER

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

                All the complainant have filed the present complaint under Section 12 of the Consumer Protection Act, 1986 on behalf of various residents of Surya Towers, VIP Road, Zirakpur, Tehsil Derabassi, District Mohali  for issuance of following directions to the Opposite Parties (for short ‘the OPs’):

(a)    to provide the basic facilities viz. proper lifts/elevators, installation of safety measures, club house/GYM, swimming pool, to get the sale deeds registered, 5 KV power back up, parking for each flat with proper marking, proper green area, children park, doors and roof railing on the roof of the building, proper bathroom fittings, removal of seepage; proper taps, anti skid tiles in the bathrooms, not to stop water supply in the flat, wooden flooring in the master bed room, proper wall textures, arrangements for cleaning the staircase and their proper polish; install red light on the top of roof; install lightening conductor; water purifier in the society; provide proper modular kitchen in every flat; proper leveling of the roads, proper system for stopping overflow of water tanks; provide security room and society office.

(b)    to pay Rs.3.00 lacs/Rs.5.00 lacs towards mental tension, agony and harassment alongwith interest @ 18% per annum.  

(c)    In addition specific defects/deficiencies occurred and not removed pertaining to specific particular flats of the complainants which will be dealt separately.

                The common case of the complainants is that they booked apartments with the OPs and entered into agreement regarding their respective flats.  At the time of booking the OPs charged Rs.80,000/- for  car parking,  Rs.40,000/- for Club Membership and Rs.60,000/- for Power Backup besides other charges.  It was mutually agreed that the possession would be given within a stipulated period and in case of delay the OPs would pay interest.  After taking over possession of the flats, the complainants found the following defects and deficiencies regarding lack of common facilities and amenities in the complex as follows:

 (a)   The installed lifts are not upto the mark and not in working condition being poor quality material. No lift has been installed in Tower No.1 and 9. The lifts have no power back up system.

(b)    Safety measures have not been provided.

(c)    Inspite of charging heavy amount, the GYM/Club House have not been constructed till date.

(d)    The committed swimming pool have been converted into splash pool where no water recycling facility is available.

(e)    Fire fighting.

(f)     No power back up has been provided.

(g)    The parking space has been sold more than the approved parking spaces.

(h)    Children park has not been provided.

(i)     Red light on the top of roof and lightening conductor has not been installed.

(j)     Water purifier has not been provided.

(k)    Security room and society office have not been provided.

Maintenance issues:

(a)    Due to improper leveling of road the water blockages in rainy seasons.

(b)    The staircase has not been properly cleaned and polished.

(c)    No system to stop water overflow of tanks is available.

(d)    The doors and roof railing on the roof of the building are missing in some towers.

Defects regarding flats:

(a)    Sales deeds have not been got registered.

(b)    The bathroom fittings are not working properly causing seepage in the flats. The anti skid tiles have not been provided and the OPs have recently stopped water supply of many flats.

(c)    Wooden flooring in the master bed room has not been provided.

(d)    There is heavy water seepage in the wall textures and wall textures have not been provided in 3 BHK flats.

(e)    Semi modular kitchen with low grade material in place of modular kitchen has been provided.

(f)     In complaint No.562 of 2013 the AC was also not fitted as promised which the complainants had to get fitted at their own cost by paying Rs.2,000/-. One split AC of 1.5 Ton was not provided as promised by the OPs.

                The complainants sent legal notice but their grievances have not been redressed by the OPs.

                Besides the above issues raised being common in all the complaints, the complainants in Complaint No.562 of 2013, Complaint No.622 of 2013,  Complaint No.159 of 2014, Complaint No.404 of 2014 have raised another issue regarding delay in possession of the flats ranging from 17 to  38 months for which they have sought the compensation for delayed period of possession.

2.             After the service of notice, the OPs appeared and filed their reply taking preliminary objections that the complainants have not approached this Forum with clean hands.  At the time of purchase of the flats, the complainants were made clear about condition No.15 of Ex.C-2 that possession would be given in time subject to availability of construction material.  The complainants had taken the possession of the flats without any complaint and they were satisfied with the construction. When the OPs demanded maintenance charges, the complainants refused to pay the same and threatened to file a case against the OPs. It is the complainants who have not followed the terms and conditions of the allotment letter as well as agreement and has not paid the full amount till date.  The complaints have been resisted by the OPs on several grounds though they have admitted the agreement of sale of apartments to them. The complainants are in possession of the flats in question. On merits, it is pleaded that the agreement was executed between the parties and the complainants have not paid the agreed amount in time.  The OPs have pleaded that the proper power back up as well as proper lift system and other facilities as per allotment have been provided. Denying other averments of the complainant, the OPs have sought dismissal of the complaints.

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

4.             During the proceedings at the instance of the complainants, the Local Commissioner was appointed who has submitted his report dated 29.12.2014.

5.             The learned counsel for complainants submitted the written arguments as well as addressed the oral arguments. However, the OPs neither filed written arguments nor addressed the oral arguments. Therefore, on the basis of the pleadings and evidence on record, the present complaints are being decided. 

6.             The main issue in the complaints is regarding lack of common facilities and amenities in the complex which have been promised by the OPs in the brochure Ex.C-29 as well as in buyer’s agreement Ex.C-25. Since it is a housing complex as more than 100 families are living in the complex and the defective/incomplete or lack of basic facilities and amenities as promised by the OPs, is putting the complainants and other residents into much inconvenience, mental harassment and agony despite the fact that the complainants have paid for such amenities and facilities. The act of the OPs in this regard, as per the complainants, is an act of deficiency in service and unfair trade practice.

7.             In order to prove their complaints in this regard, the complainants have relied on the photographs Ex.C-28 (colly), Ex.C-30 (colly) having taken by the complainants  and the report of expert Ex.C-29 regarding non functioning of 9 elevators installed in different towers.  The perusal of the photographs show that the complex is totally water logged, lifts and elevators are found in abandoned condition. Even the loose hanging electric wires in the parking area alongwith dumped building material in the complex  showing the condition of the complex which the OPs have undertaken to provide a safe living complex after charging the maintenance from the complainants. Further in order to prove the lack/defective facilities and amenities the complainants have relied on the report of the Local Commissioner dated 29.12.2014. The perusal of report of the Local Commissioner dated 29.12.2014 shows that the OPs have promised in the brochure 9 high speed  elevators whereas in reality the 9 assembled elevators and not branded  have been put into place by the OPs.  Further the lifts are poorly maintained as the carrying ropes are in a dilapidated condition.  Regarding fire fighting equipment, the Local Commissioner report says that the society is equipped with fire fighting equipment with proper equipment and pressure pumps and adequate passage for fire tenders. Regarding power back up, it is not available as per the committed capacity of 5 KVA. In fact the DG set installed is of 450 KVA and there is no connectivity and distribution of MCB panel of each flat. Further as per report of the Local Commissioner the maintenance of the complex is still being handled by the OPs whereas the same should have been handed over to the Resident Welfare Society or Association once the possession of the flats has been handed over to the residents. The act of the OPs in not transferring the maintenance work to the Resident Welfare Society is against the terms and conditions of the Buyers Agreement. Thus, the complainants stand of lack of facilities or defective facilities has been duly proved from the report of the Local Commissioner. The OPs have not raised any objection of the Local Commissioner Report. Thus, the complainants have proved their case of lack/defective basic amenities and facilities as enumerated in Para No.1 above in the complaint and on this score we hold the OPs have indulged in unfair trade practice and have failed to render proper and effective after sale service amounting to deficiency in service.

8.             The next question is regarding defects and deficiencies in the flats. As per the complainants, the Ops have promised wooden flooring in the master bed room of every flat and modular kitchen whereas after taking the possession it has been found that the master bed room is without wooden flooring and the kitchen is semi modular. Further there is lot of leakage and seepage in the flats causing damage to the walls and interiors of the flats causing inconvenience and hampering the peaceful enjoyment of their properties.

9.             We have gone through the contents of brochure Ex.C-40. The salient features of the flats as promised by the OPs wooden flooring in bed room, purified RO water, high speed elevators, 3 ACs in 2BHK and 4 ACs in 3 BHK, modular kitchen, 3 tier security besides other facilities.  Whether the OPs have come upto the expectations of the promised salient features as per brochure or not, as per the complainants, the OPs have not provided wooden flooring the master bed room nor the modular kitchen etc. We have not found any evidence on record to show the missing wooden flooring in the master bed room or having been provided semi modular kitchen. Even the photographs produced by the complainant do not lead us to any conclusion in this regard. Even the Local Commissioner report is silent on this issue. Thus the complainants have failed to prove any defect or deficiencies in the flats.

10.           Regarding non execution of the sale deed, in this regard the complainants’ grievance is that they are in possession of the properties since long and as per terms of the agreement the OPs have got the sale deed executed in their favour.  In this regard, the complainants have raised plea in Para No.6 point No.5 of the complaint and in reply thereto the OPs have simply denied and not denied specifically or by necessary implication and has not even admitted in its reply in such eventuality as per the decision of Hon’ble Supreme Court in Gian Chand and Brothers and another Vs. Rattan Lal @ Rattan Singh, 2013(2) SCC 606  the simple denial on the part of the OPs shall be taken to be admitted against them.  Meaning thereby the OPs have not got the sale deeds executed deliberately and willfully till date. The act of the Ops in this regard is to be treated as unfair trade practice and deficiency in service.

11.           Regarding maintenance issues, the roads in the complex are not properly leveled causing water logging. Further there is no proper upkeep of over head water tanks leading to over flowing and wastage of water causing damage to property of the complainants. The stair case leading to the roof top are not properly cleaned and maintained by the OPs leading to unhygienic environment in the society. The complainants have raised the pleas in the complaints but the Ops have simply denied the same. As stated above, adverse inference is to be drawn against the OPs on account of simple denial of allegations regarding maintenance issues raised by the complainants.  In fact the report of the Local Commissioner throw some light on the lack of coordination and cooperation among the complainants and the Ops regarding maintenance of the complex as the OPs have not handed over the maintenance work to the Residents Welfare Society officially. Therefore, the complainants have been able to prove their grievance regarding defective, incomplete and improper maintenance of the complex where the complainants are residing. The act of the Ops in this regard again is proved to be an act of deficiency in service and unfair trade practice.

12.           So far delay in possession ranging from 17 to 38 months to the complainants mentioned in Complaint No.562 of 2013, No.622 of 2013,  No.159 of 2014 and No.404 of 2014 are concerned, we have gone through the contents of Buyers Agreement Ex.C-26 dated 23.03.2010, clause 11 governs the time frame for handing over the possession with a rider. As per clause 11 of the buyers agreement, the possession of the apartment was to be given within 24 months from the date of allotment to the allottee provided the allottee makes all the payments due and payable under the agreement or otherwise are cleared. In complaint No.562 of 2013 the complainant was issued allotment letter 23.04.2011 and as per agreed terms the possession was to be handed over on 23.04.2013 whereas as per possession the letter, the actual possession has been handed over on 13.07.2013 Thus there is delay of 3 months. However, there is no agreed penalty clause, in the event of delay of possession beyond the agreed time frame for delivery of possession in the buyers agreement. The terms and conditions are sacrosanct and binding on the parties. Therefore, the complainants who are seeking compensation on delayed possession are not entitled to the same.

13.           Thus, the complainants have been successful in proving their complainants qua the defective or incomplete basic amenities and facilities and lack of proper upkeep and maintenance of complex. Therefore, on these two accounts we hold that OPs are deficient in rendering after sale services to the complainants and by not addressing the grievances of the complainants despite having brought to their knowledge on various occasions as well as through the legal notice, is an act of unfair trade practice on their part. Therefore, all the complaints are deserves to be allowed and the complainants deserve to be compensated.

14.           The complaints are allowed with the following directions to the OPs:

(a)    to  get the sale deed executed in favour of the complainants within a period of one month from the date of receipt of a certified copy of this order.

(b)    to get all the basic facilities and amenities in place in proper and effective operational  condition as per the promised made in the brochure within a period of three months from the date of receipt of a certified copy of this order.

(c)    To install all the 9 high speed elevators of a standard reputed company within a period of one month from the date of receipt of a certified copy of this order and to ensure that during this period the existing 9 lifts are in operation without any fail.

(d)    to handover the maintenance work  alongwith complete records of maintenance of the complex to duly authorized and  recognized association as per terms of the buyers agreement within a period one month from the date of receipt of a certified copy of this order.

(e)    to pay a lump sum compensation of Rs. 50,000/- (Rs. Fifty thousand only) to each complainant for causing mental agony and harassment within a period of 30 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.                           

June 22, 2015.    

                                                                     (Mrs. Madhu P. Singh)

                                                                        President

(Amrinder Singh)

Member

(Mrs. R.K. Aulakh)

Member