BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.200 of 2014

Date of Instt. 18.06.2014

Date of Decision :10.03.2015

Madhu Bazaz wife of Ashok Kumar Bazaz, Kothi No.36/75-A, Garden Colony, Jalandhar City-144003.

..........Complainant

Versus

The Improvement Trust, Jalandhar through its Chairman.

.........Opposite party

Complaint Under Section 12 of the Consumer Protection Act.

Before: S. Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

Sh.Parminder Sharma (Member)

Present: Sh.DS Walia Adv., counsel for complainant.

Sh.Brijesh Bakshi Adv., counsel for opposite party.

Order

J.S Bhatia (President)

1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act, against the opposite party on the averments that the complainant is allottee/transferee of Super Deluxe HIG Flat No.407-A, Shri Ram Vatika Complex, situated in Guru Ravi Dass Development Scheme carved out and developed by the opposite party. The said flat No.407-A was initially allotted to Sh.Varinder Kumar Khosla vide No.JIT/3389 dated 2.8.2006 by the opposite party. The original allottee deposited 25% allotment amount at the time of allotment and remaining full allotment amount alongwith urban cess and other miscellaneous charges within stipulated period of 2-1/2 years. The said flat No.407-A has been allotted/transferred in the name of the complainant on 19.10.2011 on realization of transfer fee of Rs.1,45,000/- only. The complainant acquired the status of allottee of the flat No.407-A, Shri Ram Vatika Complex, 13.37 Acre Scheme of opposite party. Precise back ground is that the husband of the complainant was due to retire from service in October 2009, therefore, it was imperative to vacate official residence. It was learnt that the opposite party is due to hand over possession of super deluxe HIG flats in Shri Ram Vatika Complex in the end of year 2009 and while inviting application for allotment, opposite party had announced that complex shall be state of art and shall have host of facilities such as round the clock security, provision of 24 hour power back up for all flats, Biometric access system for each flat, door eye facilities at main door, video door phones, lifts overlooking central centrum, sliding main gate automation etc etc. The complainant then visited the office of the opposite party in October 2009 and above referred facts were confirmed by officials of opposite party. In these circumstances, the complainant entered into arrangement with allottee for transfer of his flat No.407-A in the name of complainant. The opposite party dragged on the due date of delivery of possession i.e December 2011 (2010 ? )upto October 2011 due to their negligent act. On the other hand, the husband of the complainant refused to seek further extension in service after October 2011, therefore, in October 2011, the complainant on 18-19/10/2011 completed all formalities for transfer of flat No.407-A in her name in the record of opposite party record so that thereafter complainant could take necessary recourse to ask the opposite party to provide all the basic services/features as were promised in Brochure of Shri Ram Vatika Complex. The complainant alongwith her husband number of times visited the office of opposite party to request the engineers to provide the promised features in the complex especially when the complainant has paid the cost thereof. It is referable that flats in Shri Ram Vatika Complex were constructed by opposite party on Self Financing. The project site in the year 2012 was giving a deserted look and there was heaps of garbage and dust all around and even wood work was incomplete and the seepage was visible all around the flat and in common areas. The Biometric system was not functional and parking site in the basement of building was filled with broken goods and cement etc. The complainant felt cheated and it amounted to unfair trade practice on the part of the opposite party. The husband of the complainant, who was duly authorized by complainant to pursue the matter of providing promised services in Shri Ram Vatika Complex met the engineers of this project but no tangible action was taken. Due to non providing of the promised basic services in the complex, the opposite party failed to handover the possession of flat to complainant. The husband of the complainant visited the office of the opposite party many a times in between January 2012 to December 2013 and even the detail of services which remain yet to be provided was also given to engineers of opposite party. Other allottees too had been submitting the complaints of deficiency of service to opposite party. Lastly in a meeting with chairman of opposite party held in the mid of November 2013, the complainant clearly stated that if all the promised services are not provided, the complainant shall file a case in the Forum. The list of deficiencies were also handed over to the officiers of opposite party present in the meeting and again likewise an hollow promise was made to do the needful by 30.12.2013. To counter the lawful action of complainant of approaching the Forum, the opposite party without fulfilling the assurance of completion of project work, the opposite party for the Ist time issue a letter dated 14.11.2013, which was received on 10.12.2013 and asked the complainant the possession of flat may be taken or you/complainant shall be liable to pay maintenance charges. Though the conveyance received on 10.12.2013 is disputed on facts and a letter dated 21.12.2013 has already been sent to the complainant yet it can be assumed that the opposite party for the Ist time has come up with stand that the complex is now complete and ready for use. No reply was given to aforesaid letter of complainant dated 21.12.2013 by the opposite party and matter shall be followed separately in due course. The delay in providing the promised basic services/features in Shri Ram Vatika Complex, especially when the cost of all such services was paid by complainant is directly attributed to the negligent conduct and unfair trade practice of opposite party. The full allotment amount of flat stands deposited by August 2009 and the amount also included the cost of all promised services. The non providing of the promised services by year end 2009 is on account of negligent conduct of opposite party, which also amounts to deficient services and unfair trade practice. The complainant for the said deficient service and unfair trade practice could not utilize his property and as such has suffered loss of Rs.20,000/- per month during the period from 1.1.2010 to 10.12.2012, therefore, the opposite party is liable to pay the amount of the damages as prayed above. On such like averments, the complainant has prayed for Rs.20,000/- per month as damages w.e.f 1.1.2010 to 10.12.2013. He has also claimed compensation for mental agony and shock besides litigation expenses.

2. Upon notice, opposite party appeared and filed a written reply raising preliminary objections regarding maintainability, pecuniary jurisdiction, esttopel, concealment of material facts etc. It further pleaded that the complainant is not the original allotee of the flat in question rather she has purchased the constructed flat in October 2011 after fully being aware of the condition of the flat and status of works at site and after being fully satisfied with the same in subsequent purchase after paying due price as may be prevalent at that time to the seller and no amount has been paid by her on account of any services or development expenses to trust except for the statutory transfer fee for which the flat was transfered in her name. If in October 2011 she was not satisfied with the condition of the flat or facilities at site then she should not have bought the same or requested at that time for any such grievance but she never complained at that time nor sought any clarification which implies that she had accepted the flat and facilities as it is at site. However, it is worthwhile to mention that the alleged deficiency in providing facilities as claimed by her is not maintainable because all the facilities as far as the part of the Trust is concerned have been duly provided however the maintenance thereof as per the conditions of allotment is upon the cooperative society to be formed by the allottees/vendees of the flats before taking possession from Jalandhar Improvement Trust as per the sale agreement. Moreover as per the conditions of the agreement possession of semi-finished flat was to be delivered by the trust to the allotee on "As is Where is Basis". it is also part of the agreement that the trust shall not entertain any complaint whatsoever regarding the cost of flat, its design and quality of material used, workmanship or any other defect. It is further agreed that the allottee/vendee agrees and undertakes not to make such complaint/request aforesaid and shall accept the possession of the flat on "as is where is basis". She shall rather maintain the flat at her own costs in satisfactory condition after taking possession thereof. Thus, it may be seen that the complainant who was well aware of the conditions of the agreement took on transfer the said flat in October 2011 but in order to avoid her liability to maintain the flat intentionally did not take possession of the flat and never even applied for taking the possession of the flat. Now, as regards the facilities promised to the allottees, it may be seen that (i) round the clock security has been provided at site and rather the security staff who should have been paid and maintained by the allottees of the flats is being maintained by Jalandhar Improvement Trust. (ii) Provision of 24 hours power backup for all flats has already been provided as the gensets have been installed in the compound, however the maintenance and running thereof is the responsibility of the society of flat holder(society which has to be formed as per the conditions of the allotment by the allottees after allotment and before taking possession of flats at site and every allottee as per agreement has to become member thereof). (iii) Biometric Access System was installed since the construction of flats at site. (iv) Door eye facilities at main doors have not been provided and no amount of this facility has been accounted for in the final calculations of the cost. (vi) Video door phones are available for the allottees. (vii) Lifts at site overlooking central centrum (viii) Sliding main gates already provided. The cleaning and maintenance of the compound which was to be done by the cooperative society is till date being done by Jalandhar Improvement Trust. However, as some of the flat holders are doing their own renovation work as such some of the debris or raw materials are put by them in the compound which is regularly removed. It is pertinent to mention that some allottees even took possession of their respective flats in the year 2010,2011 and 2012. For instance possession slips of flat No.505-A dated 11.11.2010, Flat No.604-A of 1.2.2011 and flat No.308-A of 29.3.2012 are annexed herewith to show that the opposite party was in position to deliver possession even prior to the date of purchase by the complainant. Thus, it may be seen that there has been no delay in the construction or deficiency in services or maintenance as far as the opposite party is concerned. Now, if the complainant or for that matter any other allottee do not take possession and the flat lies closed fore more than three years at site then Jalandhar Improvement Trust ca not be held responsible for that as it is not to maintain the cleanliness or repairs of the allotted flats of which either the possession has been taken or is not being taken by the allottee with any malafide intention of ultimately accusing the Trust or the official of the Trust for deficient service. It may be seen that till shortly ago the allottees including the complainant had to form the society for upkeep of the premises thus default lies with the complainant or the other allottees for that matter and not the opposite party and thus the present complaint deserve to be dismissed. They denied other material averments of the complainant.

3. In support of her complaint, learned counsel for the complainant has tendered affidavit Ex.CA alongwith copies of documents Ex.C1 to Ex.C12 and closed evidence.

4. On the other hand, learned counsel for opposite party has tendered affidavit Ex.RA alongwith copies of documents Ex.R1 to Ex.R10 and closed evidence.

5. We have carefully gone through the record and also heard the learned counsels for the parties.

6. The complainant is not original allottee . According to the own version of the complainant, the flat in question was initially allotted to Varinder Kumar Khosla in the year 2006 and the said flat allotted/transfered in the name of the complainant vide letter dated 19.10.2011 on payment of Rs.1,45,000/- as transfer fee. The complainant has herself pleaded these facts in para No.1 of the complaint. No doubt transferee from the original allottee is also consumer but the case of transferee from allottee is some what on different footing. In SC Jain son of PC Jain & others Vs. Haryana Urban Development Authority, revision petition No.790 of 2012 decided on 21.11.2012 by Hon'ble National Commission. It has been held as under:-

"Respondents in the three appeals are not the original allottees. They are re-allottees to whom re-allotment was made by the appellant in the year 1994, 1997 and 1996 respectively. They were aware, when the plots were re-allotted to them, that there was delay (either informing the layout itself or delay in delivering the allotted plot on account of encroachment, etc). Inspite of it, they took re-allotment. Their cases can not be compared to the cases of original allottees who were made to wait for a decade or more for delivery and thus put to mental agony and harassment. They were aware that time for performance was not stipulated as the essence of the contract and the original allottees had accepted the delay".

7. So the complainant can not have any grievance before the date of transfer of the flat in her favour by opposite party trust. The complainant has produced allotment letter Ex.C1 in respect of the flat in question. The parties are bound by terms and conditions of the allottment letter. The condition No.11 of the allotment letter provides that allottee after payment of all the installments including enhanced price and fulfilling all the conditions and after becoming member of Shri Ram Vatika Apartment Cooperative House Building Society Limited which has been constituted for looking after the common portion such as parking places, community service, lifts, security, street lights, power backup and swimming pool shall be entitled to take possession of the flat in question and the flat shall be given on "As is Where is Basis". This condition further provide that construction of the flat is to be completed within 2-1/2 years and allottee shall take electricity and water connection from the concerned department at his own level after taking the possession of the flat. So complainant is only entitled to the possession of the flat after becoming member of the above said cooperative society who is responsible for looking after and maintenance of above said common facilities. The complainant is not seeking possession of the flat. It may be mentioned here that originally the complainant has prayed for possession of the flat but by way of amendment claim of this relief was omitted and did not claim the relief of possession. This was obviously done by the complainant due to pecuniary jurisdiction of this Forum. The value of the flat is more than Rs.20 Lacs and in case the complainant had claimed the relief of possession then this Forum would not have pecuniary jurisdiction to entertain and decide the present complaint. It is also in the affidavit Ex.RA of Dayal Chand Garg, Executive Officer of opposite party trust that all the facilities as far as the part of the Trust is concerned have been duly provided, however the maintenance thereof as per the conditions of allotment is upon the cooperative society to be formed by the allottees/vendees of the flats before taking possession from Jalandhar Improvement Trust as per the sale agreement. It is further in his affidavit that moreover as per the conditions of the agreement possession of semi-finished flat was to be delivered by the trust to the allotee on "As is Where is Basis". It is further in his affidavit that round the clock security has been provided at site and the provision of 24 hours power backup for all flats has already been provided as the gensets have been installed in the compound, however the maintenance and running thereof is the responsibility of the society of flat holder. It is further in his affidavit that Biometric Access System was installed since the construction of flats at site and door eye facilities at main doors have not been provided and no amount of this facility has been accounted for in the final calculations of the cost. It is further in his affidavit that video door phones are available for the allottees and lifts at site overlooking central centrum and sliding main gates have already been provided. It is further in his affidavit that cleaning and maintenance of the compound is being done by the cooperative society till date by Jalandhar Improvement Trust. In the above circumstances, we feel that complainant has failed to prove any deficiency in service on part of the opposite party trust. The complainant purchased the flat in October 2011 fully knowing the terms and conditions of the allotment letter and condition existing at the spot. The complainant having claimed the possession in the original complaint and after having given-up this relief in the amended complaint, can not raise any grievances regarding lack of facility at the spot and allege that she could not utilize her property and has suffered loss of Rs.20,000/- per month. Moreover, she was entitled to possession of the flat after becoming member of the society which was to be formed by the allottees.

8. In view of above discussion, we hold that there is no merit in the present complaint and same is hereby dismissed with no order as to cost. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.

Dated Parminder Sharma Jyotsna Thatai Jaspal Singh Bhatia

10.03.2015 Member Member President