BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.666 of 2014
Date of institution: 19.11.2014
Date of Decision: 28.07.2015
Sonia Bhopla wife of Ashwani Kumar, Apartment No.603, Floor 6th, Tower B-3, Surya Towers, Zirakpur, Tehsil Derabassi, District SAS Nagar, Mohali now resident of 119, Grandvista Cres Woodbridge, ON Canada.
……..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 Sidhu, Member.
Mrs. R.K. Aulakh, Member.
Present: Shri Mohit Jaggi, counsel for the complainant.
None for the OPs.
(Mrs. Madhu P. Singh, President)
ORDER
The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 for issuance of following directions to the Opposite Parties (for short ‘the OPs’):
(a) to pay her interest @ 24% i.e. Rs.13,90,800/- for the delay period of possession
(b) to refund her Rs.88,065/- paid towards excess service tax.
(c) to provide independent parking;
(d) construct club in the complex or refund Rs.40,000/-.
(e) provide 5 KVA power back, water purifiers and UPS; get the flat registered in the name of the complainant and pay back the difference of 1% to be spent by the complainant for the fault of the OPs; install new branded lifts/elevators and do necessary repairs of the flat; provide anti skid tiles in the bathrooms; fire safety equipment; lightening conductor; install red light above building; wooden flooring in one room or refund Rs.50,000/-; pay Rs.4,000/- for installing railing in the balcony by the complainant; provide swimming pool; arrange the electricity wires which are lying open; provide green area; children park, three tire security etc. etc.
(f) to pay Rs.3.00 lacs for mental tension, agony and harassment.
The case of the complainant is that she booked one apartment with the OPs and entered into agreement regarding the flat on 26.11.2010 for Apartment No.603, 6th Floor, Tower B-3, Surya Towers, Zirakpur. The total cost of the flat was fixed as Rs.28,50,000/- which includes Rs.80,000/- for car parking, Rs.40,000/- for Club Membership and Rs.60,000/- for Power Backup besides other charges. At the time of agreement, the complainant paid Rs.5.00 lacs to the OPs. It was mutually agreed that the possession would be given within a period of 12 months and in case of delay the OPs would pay interest @ 24%. The complainant made various payments to the OPs on different dates. The OPs given the possession of the flat to the complainant on 17.09.2013 on but not issued the No Due Certificate till the complainant pays Rs.88,065/- towards service tax which the complainant. Finally under compelling circumstances, the complainant paid Rs.88,065/- and only then she issued no due certificate was issued on 30.09.2013. The complainant had paid Rs.80,000/- for parking but till date parking has not been allotted to her. The complainant also paid Rs.40,000/- for club membership but no club has been constructed in the society. Similarly 5 KVA power back up for which an amount of Rs.60,000/- was charged has not been supplied. The flat has not been registered in the name of the complainant. The materials used in the construction of the flat is of very poor quality. The doors are of poor quality. There is seepage in almost every room of the flat. Promised wooden flooring has not been provided in the one room. The railing given in the balcony is just 34 inches which cause danger to life.
2. After the service of notice, the OPs appeared and filed their reply taking preliminary objections that the complainant has not approached this Forum with clean hands. At the time of purchase of the flats, the complainants was made clear about condition No.15 of Ex.C-2 that possession would be given in time subject to availability of construction material. The complainant had taken the possession of the flat without any complaint and she was satisfied with the construction. When the OPs demanded maintenance charges, the complainant refused to pay the same and threatened to file a case against the OPs. It is the complainant who has not followed the terms and conditions of the allotment letter as well as agreement and has not paid the full amount till date. The complaint has been resisted by the OPs on several grounds though they have admitted the agreement of sale of apartments to them. The complainant is in possession of the flats in question. On merits, it is pleaded that the agreement was executed between the parties and the complainant has 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 complaint.
3. To support her versions, the complainant tendered affidavit Ex.CW-1/1 and copies of documents Ex.C-1 to C-9.
4. After filing written reply, none appeared for the OPs to tender evidence on their behalf.
5. We have heard learned counsel for the complainant and perused the record.
6. Admittedly the complainant is in possession of the property in dispute regarding which the complainant has alleged deficiency in service and unfair trade practice on account of delay in handing over the possession, excess charging of service tax, not providing independent parking, non construction of club and lack of common facilities and amenities in the complex.
7. The OPs have denied the allegation in their written statement but have not led any evidence in support of the contentions raised in their reply. Therefore, on the basis of pleadings and evidence we are appreciating the concerns of the complainant.
8. The first issue raised regarding delay of possession causing financial loss to the complainant and the complainant has sought interest @ 24% on the deposited amount for the delayed period of possession. To answer the grievance of the complainant, it will be appropriate to go through the contents of the agreement to sell executed between the parties Ex.C-2. Clause 11 of the said agreement is regarding the possession of the dwelling unit. The OPs have taken an obligation upon themselves to deliver the possession of the apartment within 12 months from the date of allotment letter subject to force majeure and for the reasons beyond the control of the OPs.
9. The grievance of the complainant that the Ops have failed to abide by the time frame of 12 months and have handed over the possession on 17.09.2013. Thus, it is ample clear that from the date of agreement to sell dated 26.11.2010, the OPs was to handover the possession within 12 months thereafter i.e. on or before 26.11.2011 whereas the actual and physical possession has been handed over to the complainant on 17.09.2013 Ex.C-6. Thus, there is a delay of one year and 10 months in handing over the physical possession which is in contravention to the agreed terms i.e. clause-11 of the buyers agreement Ex.C-2. Thus the act of the OPs in not adhering to the agreed terms is an act of unfair trade practice. Due to the delayed possession the complainant has suffered financial loss and mental agony for which the complainant has sought compensation by way of interest @ 24% on the deposited amount.
10. Whether the complainant is entitled to compensation as prayed on this account, in order to find the answer again we would like to refer to clause-11 of buyers agreement Ex.C-2. The perusal of Clause-11 shows that the Ops have never owned any liability for delay in handing over the possession except as mentioned the circumstances which may lead to delay in handing over the possession. In its reply the Ops are absolutely silent about the which were beyond their control to handover the possession within the agreed time frame. Admittedly there is delay of one year and 10 months in handing over possession. Certainly the complainant has suffered mental agony and financial loss as she has deprived of the use and benefit of the property beyond the agreed time frame for possession. Therefore, the grievance of the complainant is well founded and she deserves compensation on this account.
11. The grievance of the complainant regarding excess charging of service tax, the answer to the same is again to be traced from the agreement to sell Ex.C-2. Clause 17 of the buyers agreement clearly states that all the levies, taxes etc. by any authority from the date of allotment is to be borne and paid by the purchaser in proportion to the area of the said apartment as long as each apartment is not separately assessed by such taxes. The demand of payment of services to the tune of Rs.88,065/- by the OPs before issuing the no due certificate at the time of possession, since has been met by the complainant without any protest and further the complainant has not proved on record or justified as to how the said demand is in excess. Therefore, the bald allegation without any supporting evidence is of no help to the complainant to raise such a grievance in the present complaint.
12. The next grievance of the complainant is that despite having paid Rs.80,000/- for car parking, she has not been allotted independent car parking and, therefore, has alleged unfair trade practice on the part of the OPs. The complainant has proved payment of Rs.80,000/- to the Ops. Whether she is entitled to independent parking slot or not, the answer again will be traced from the buyers agreement Ex.C-2. As per clause 2 ( c) of buyers agreement, there is a provision for car parking preferential location, club membership alongwith power back up to be paid extra. Admittedly the complainant has paid extra for car parking facility and is entitled to separate car parking slot in the car parking area. The OPs have in their reply to Para No.9 of the complaint where the complainant has raised contention of non provision of independent car parking, have simply denied the contents of the said para without any substantive and supporting evidence. Thus by after charging the paid parking amount and not allotting the parking slot the complainant is an act of unfair trade practice.
13. Another issue in the complaint is regarding lack of common facilities and amenities in the complex which have been promised by the OPs in the brochure as well as in buyer’s agreement. 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.
14. In order to prove the complaint in this regard, the complainant has relied upon the photographs duly supported by affidavit and the same remained unrebutted. 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 complainant. Thus, the complainant has proved her case of lack/defective basic amenities and facilities 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.
15. The next question is regarding defects and deficiencies in the flat. As per the complainant, the Ops have promised wooden flooring in the master bed room of the 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.
16. We have gone through the contents of brochure. The salient features of the flat 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 complainant, 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.
17. Regarding non execution of the sale deed, in this regard the complainants’ grievance is that she is in possession of the property since long and as per terms of the agreement the OPs have got the sale deed executed in their favour. In this regard, the complainant has raised plea in 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 deed 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.
14. The complaint is allowed with the following directions to the OPs:
(a) to get the sale deed executed in favour of the complainant 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 allot separate independent parking slot to the complainant in the parking space.
(e) to pay a lump sum compensation of Rs. 50,000/- (Rs. Fifty thousand only) to the 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.
July 28, 2015.
(Mrs. Madhu P. Singh)
President
(Amrinder Singh Sidhu)
Member
(Mrs. R.K. Aulakh)
Member
