DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, LUCKNOW
CASE No.619 of 2008
Smt. Pushpa Shukla, aged about 65 yrs.,
W/o Late Sri Harishchandra Shukla,
R/o 504/53, Tagore Marg, Near Bandi Mata Mandir,
Daliganj, Lucknow.
……Complainant
Versus
Sri Sushil Kumar Agarwal,
S/o Late Sri Raj Kishore Agarwal,
Office Address:- G-4, Sheen Apartment,
A-1/1/C, Sector ‘C’ Aliganj,
Near Nirala Nagar Crossing,
R/o 106 Park Villa Apartments
Sector A/8-1, Aliganj, Near Palika Bazar,
Aliganj, Lucknow.
.......Opp. Party
Present:-
Sri Vijai Varma, President.
Smt. Anju Awasthy, Member.
JUDGMENT
This complaint has been filed by the Complainant against the OP to install the lift in the building, to complete the unfinished tasks relating to woodwork, electricity, finishing of walls or pay Rs.1,00,000.00 and for payment of Rs.8,000.00 per month on account of expected rental income, Rs.400.00 per month on account of fixed electricity charges, 18% interest on the advance amount of Rs.8,75,000.00, 18% interest on total sale consideration of Rs.10,00,000.00, expenses of Rs.40,000.00, compensation of Rs.2,00,000.00 and damages of Rs.1,00,000.00.
The case in brief of the Complainant is that the OP propagated development of residential group housing building sheen apartments which shall be equipped with all the modern facilities including lift, marble flooring with granite polish, electricity connection, designer modular kitchen with modular
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switches. The Complainant met with the OP and inspected the under construction building whereupon being satisfied by the assurances of the OP the Complainant decided to purchase a flat in the said building. The OP allotted a flat No.S-1, situated on the second floor of sheen apartments for a total consideration of Rs.10,00,000.00. The Complainant being doubly assured by the OP that a lift would be installed in the building, agreed to buy the said flat on the second floor, otherwise on account of her old age it is very stressful for her to climb up the stairs. In furtherance of the aforesaid allotment, on 29.04.2006 the OP executed a registered agreement to sell in respect of the flat in favour of the Complainant. The Complainant made an advance payment of Rs.8,25,000.00 to the OP at the time of execution and registration of agreement to sell. In the said agreement to sell a specific condition was laid that the OP shall execute and register the sale deed in respect of the flat in furtherance of the agreement to sell and handover the possession of the said flat within a period of three months from the date of the agreement to sell, i.e., on or before 29.07.2006. In spite of the above said condition in the agreement to sell, the OP avoided to honour the said condition on one pretext or the other and it was only after much persuasion and delay that on 22.02.2007 the OP executed a sale deed in favour of the Complainant in respect of the flat after a delay of more than six months and received the balance sale consideration of Rs.1,75,000.00. The Complainant was shocked and pained to discover that no lift was installed by the OP as promised by him. In this regard, the OP again assured that the installation was under process. The building including flat in itself is in semi furnished condition, the architectural view that the OP has shown in advertisement campaign has not been constructed in that manner moreover there are pillars with open rods, which are imminently dangerous. In the said flat there are cracks in almost every wall showing poor quality
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of construction material used, the wardrobes made out of plywood in rooms, kitchen are unpolished, unfinished and are rough, electricity connections switches are not present at many places and are of very poor quality and all this has been done in the name of first quality construction thereby committing fraud, cheating and unfair trade practice. It is imminently dangerous to have open electric wires, cutouts and switches. Upon climbing to the flat for the first time, the Complainant was shocked to discover that the OP had not provided any electricity connection as promised and assured and in that respect the OP demanded an extra amount of Rs.50,000.00 from the Complainant for the same. When the Complaint decided to obtain a private connection from the authority concerned, the Complainant was asked to furnish a no objection from the OP. Having been left with no alternative, the Complainant instituted a writ petition No.3075 (M/B) of 2007 wherein only after the passing of order dated 06.08.2007 a private electric connection was installed for the flat. Till date even after repeated reminders, requests and complaints made both orally and in writing no action has been taken for installation of a lift being the crux of dissatisfaction of the Complainant and manage the proper working of the building. The OP has constructed the building complex breaking all promises and assurances, hence this complaint.
The OP has filed the WS wherein it is mainly submitted that the Complainant wanted to purchase a new flat, hence he contacted the OP for the same at the site and after full satisfaction he proposed to purchase a flat and the OP agreed to sell one flat to the Complainant and in this respect it is pertinent to mention here that lift and ward robes and the brochure and view/picture of the apartment filed by the Complainant is not the brochure and view/picture of the OP apartment which is manipulated document filed by the Complainant and the provision of lift and ward robes were
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wrongly mentioned by the Complainant and actual photo is affixed in the sale deed of the Complainant at last page. The OP executed the sale deed which was executed only after full satisfaction of the Complainant in which there is no mention of lift, ward robes at all for which no consideration was paid by the Complainant and the consideration which was paid only after inspecting the site and after full satisfaction otherwise no one will enter into execution of sale deed. An advance payment has been made by the Complainant after which the Complainant and OP entered into agreement to sell but as the balance amount was not ready with the Complainant, hence the Complainant herself executed the sale deed after 8 months which was not mistake of the OP. No assurance of lift was ever given by the OP at any point of time and there was no semi furnished work after sale deed and the photographs which are filed by the Complainant are the photographs of the site which were taken by the Complainant at the time of work in progress and the mentioning of open iron rods is the provision of the OP for 3rd floor which is the provision generally left by all builders and this provision is not dangerous at all. No fraud, cheating or unfair trade practice has been committed by the OP. The Complainant alongwith her family members inspected the flat at each and every stage and all the flats are intact with each other and without providing the electricity connection to the Complainant the electricity lines will not go further to the nearby flat, hence the allegation for extra demand is baseless because it is the duty of all flat owner to take electricity connection from the UPPCL and in the writ petition no liability is fixed by the Hon’ble High Court in respect of OP. All the facilities were provided by the OP to the Complainant which were provided to other 11 flat owners and if Complainant wants any extra facility then the Complainant will have to pay for it which was already told by the OP to the Complainant at the time of agreement to sell. There is no short
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coming in masonry work and for just and impartial adjudication of the case it will be in the fitness of things that an expert opinion by the Govt. expert or by physical verification of the site may kindly be obtained by referring the matter so that a correct picture be arrived at. There is no unfinished tasks, hence there is neither any deficiency in service nor any defect in the flat on the part of the OP. The complaint of the Complainant is liable to be dismissed with special costs.
The Complainant has filed her affidavit with 5 annexures and 6 annexures with the complaint. The Complainant has filed written arguments with 5 annexures. The OP has filed the affidavit of Sri Sushil Kumar Agarwal. The OP has filed the written arguments with paper No.11 to 46.
Heard Counsel for the parties and perused the entire record.
Now, in this case, it is to be seen as to whether the Complainant was provided with the common facilities including lift by the OP as promised and whether the construction of the flat was of much poor quality and the OP also left the building in a dangerous state or not and whether the OP has committed deficiency in service or not and the consequences thereof.
The Complainant purchased a flat from the OP with promised facilities of lift etc. but the same was not provided to the Complainant, whereas according to the OP there was no promise of providing the lift. In this regard, the Complainant has filed the photocopies of the sale deed of various flats of the Sheen Apartments in which the Complainant had also purchased a flat. From the sale deeds of the allottee Smt. Ruby Gupta, Jagriti Bhatnagar, Monika Singh, the copies of which have been filed by the Complainant show that in para 10 of the sale deed it is mentioned that the vendor has provided the
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common facilities which include corridors, stairs, passage, ways, open car parking, area in front of the building, lift, over head water tanks etc. and the vendee shall be entitled to use the same alongwith other occupants of the building and shall be liable to pay the proportionate share of such expenses which were incurred on the running maintenance and upkeep of the common facilities provided and on the basis of these it is argued by the learned Counsel for the Complainant that the building in question did have the provision for providing the left. The Complainant has also filed a photocopy of the brochure of Sheen Apartments wherein the provision for lift is mentioned. So far as this document is concerned it is argued by the learned Counsel for the OP that this document is not the brochure of building in question but the OP is not able to provide the brochure of the apartments in question. On the contrary, it is clearly the case of the Complainant that this is the brochure of Sheen Apartments wherein one of the flat has been allotted to her and in that brochure there is the provision of lift. Besides, it is also argued from the side of the Complainant that there was the provision of lift as is evident from the sale deeds of other allottees of building in question wherein the para 10 of the sale deed it is clearly mentioned that the OP is providing the common facilities which include corridors, stairs, passage, ways, open car parking area in front of the building, lift, over head water tanks etc. and the vendee shall be entitled to use the same and other occupants of the building. In view of this pacific provision it is argued by the learned Counsel of the Complainant that there was the provision of lift but the same has not been provided to the inmates of the building in question. With regard to this provision it is argued by the learned Counsel for the OP that only area was provided, lift was not to be provided but this argument is of not much relevance as admittedly electric installations, over head tanks etc. have been provided by the
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OP then there is no question as to why the lift was not to be provided and only the area was to be provided. Besides as mentioned in the brochure there was the provision for lift and also looking into the photographs the area of the lift it is clear that lift was to be provided as some work regarding the constructions of lift is visible but it appears that it has been left out by the OP, therefore under these circumstances it is clear that there was undoubtedly the provision of lift for the flats promised by the OP but the same was not provided to the vendees of the Sheen Apartments including Complainant. It is also argued by the learned Counsel for the Complainant that pillars with iron rods are left open on top of the building which is very dangerous to the life of the inmates. The OP admits to have left out certain pillars with iron rods but his argument is that these were left for making one more floor on the building. Whatever be the reason for the pillars and the iron rods to be there in the building, the fact remains that the pillar with the iron rods left open, as seen in the pictures also filed by the Complainant, it is clear that they are very dangerous to the inmates of the house. The Complainant has also taken the stand that the construction of the building was very poor and the cracks developed in the apartment and she has filed the photographs which show crack in the walls and the wood work done by the OP which according to the Complainant are indication of the poor construction done by the OP. In this regard, learned Counsel for the OP has argued that there should be an expert opinion for ascertaining as to whether there has been any poor construction or not but on seeing the photographs it is clear that there has been very poor construction done by the OP as cracks have developed in the wall and there is no need for any expert opinion for ascertaining as to whether the construction work is poor or not. Therefore, it is clear that the OP’s construction work of the flat in question was very poor. Obviously, the OP has committed
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serious deficiency in service in the construction of the flat in question of the Complainant and also in not providing lift to the building in question and also leaving the pillars with iron rods opened which are quite dangerous to the inmates including Complainant. Therefore, the Complainant is entitled to the lift to be provided by the OP and OP should also compensate the Complainant for the poor construction work of the house. The OP should also remove the iron rods from the pillars which are left opened. The Complainant is also entitled to the cost of the litigation.
ORDER
The complaint is partly allowed. The OP is directed to install a lift within 2 months otherwise the OP shall pay Rs.1.00 lakhs (Rupees One Lakh Only) to the Complainant. The OP is also directed to pay Rs.50,000.00 (Rupees Fifty Thousand Only) as compensation for poor construction work to the Complainant. The OP is also directed to remove the iron rods from the pillars.
The OP is also directed to pay Rs.4,000.00 (Rupees Four Thousand only) as the cost of the litigation to the Complainant. The compliance of the order is to be made within two months.
(Anju Awasthy) (Vijai Varma)
Member President
Dated: 7 August, 2015
