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

                                  Consumer Complaint No.526 of 2014

                                 Date of institution:          25.08.2014

                                               Date of Decision:             28.05.2015

1.     Balbir Singh

2.     Krishna Devi

Residents of Flat No. 136, Solitaire Divine Himmatgarh, Dhakoli, Zirakpur.

                                                                        ……..Complainants

                                        Versus

1.     The Managing  Director or Head Incharge, Divine Associates, Commercial Unit No. 323, Aggarwal Plaza, Plot No. 03, DDA, Community Center, Sector -14, Rohini, New Delhi-110085.

2.     The Managing Director or Head Incharge, Divine Associates, F-32, Sector 18, Noida-201301 (UP).

3.     The Head Incharge/Project Manager Divine Associates, Solitaire Divine Village Himmatgarh, Dhakoli, Zirakpur, Punjab.

………. 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 Sunil Polist, counsel for the complainants.

Shri Daljit Singh, counsel for the OPs.

(Mrs. Madhu P. Singh, President)

ORDER

                By this common order, we are disposing of 15 connected complaints, as detailed below, as all are having same controversy as well as similar question of facts and law:

                The common case of the complainants is that they booked flats in Solitaire Divine project of the Opposite Parties (for short ‘the OPs’) in December, 2012 and the committed date of possession was 31.03.2013. 85% consideration amount of the flat alongwith all mounts and dues as demanded by the OPs were paid by the complainants within time.  As per agreement, the possession was to be delivered on 31.03.2013 whereas the physical possession was delivered to the complainants with a delay ranging from five months  to twelve months from the committed date of possession.  After taking possession of the flats, the complainants noticed that the OPs had used inferior quality material for construction of the flats and did not provide the promised and agreed facilities as per brochure. The OPs also had not obtained the completion certificate from the competent authority. The complainants requested the OPs many times through various letters but the defects have not been rectified. The complainants are facing the following shortcomings/problems in the flats:-

(i)             Oil bound distemper on POP Plaster/Putty was to be used whereas not only an inferior quality but also dry distemper has been used which is a violation of the terms and conditions of the agreement.

(ii)            As per the clause-10 of the allotment letter, it was promised by the OPs that R.O. treated water supply will be provided for all flats whereas only individual R.O. has been provided to each flat.

(iii)           As per the brochure it was shown by the OPs that Capsule Glass lift would be provided but instead of this an inferior type of simple glass lifts have been provided in violation of the terms and conditions.

(iv)           As per the brochure, the OPs had promised that Entrance Lobby would be air conditioned but till today this facility has not been provided.

(v)            It was promised that Modular Kitchen would be provided but only some cabinets are modular and remaining all cabinets are simple in nature and inferior type of wooden work has been done in the kitchen in violation of the terms and conditions of the agreement.

(vi)           The OPs had also promised that anti skid tiles would be fixed in the bathroom of the master bedroom whereas slippery tiles of inferior quality have been provided.

(vii)          Powder coated aluminum/UPVC external window shutters were to be provided and teak wood was to be used in windows/doors but very poor quality wood work has been done in violation of committed specifications.

(viii)         Jaquar/porko or equivalent bath fittings were to be provided but some un-branded inferior quality shower fittings have been used.

(ix)           Intercom facility between the apartments has not been completely provided and also handsets have not been provided.

(x)            Parking slot of the complainants remained partially under occupation of OPs office upto March, 2014 which put the complainants under unnecessary inconvenience and hardship for which a sum of Rs. 7,000/- (@ Rs. 1,000/- p.m. as rent for seven months be paid to the complainants.

(xi)           As per clause 13.6 of allotment letter, the physical possession of flats was to be given by 31^st March, 2013, failing which the OPs were liable to pay Rs. 4/- per sq. feet of super area per month and the possession has been delivered with delay. Thus, the complainants deserve compensation for this delayed period.

12.          The OPs Vide letter dated 02.03.2013 asked the complainants to make payment of last installment alongwith MMS charges and IFMS which the complainants paid well in time but the possession was not delivered as promised putting the complainants under unnecessary financial burden. Therefore, interest @24% p.a. which the OPs have charged from the flat owners on delayed payment be paid to the complainants.

(xiii)         The facilities like Steam Room, Sauna, Jacuzzi, Spa, Separate Children’s pool have not been provided till date.

(xv)          The security facility is lethargic due to which the safety and security of the complainants and their family members is being compromised.

(xvi)         The OPs have taken monthly maintenance charges for one year in advance from the complainants along with interest free maintenance security but till date no agreement has been signed for facility management services. Without providing the maintenance facilities the OPs are charging maintenance and also demanding further/future maintenance.

(xvii)        The OPs had committed to provide 24 hours power backup facility in the society and 1 KVA power backup was to be provided for the flats at no extra cost. But till date power backup facility has not been started even for common facilities like Lifts/Street lights/corridor lights etc. No sub meter has been installed for the individual flat. The OPs are proposing to charge Rs. 30 per hour for power backup which is an unreasonable, illogical and exorbitant amount.

(xviii)     It was nowhere mentioned in the allotment letter that ownership of Club Solitaire will be with the OPs and that the OPs have right to sell club solitaire. However, at the time of legal execution of documents of flats, a clause has been included by the OPs that the commercial area, swimming pool, club are not included in the common area,

(xix)      The flats were sold based on super area. As per allotment letter at the time of handing over possession of flat, exact calculations of super area was to be provided to the complainants which has never been explained to the complainants.

(xx)       As per point No.8 of allotment letter it was mentioned that “the company shall operate, maintain and manage community facilities such as Sports & Health Club being constructed under the scheme under the name and style of “Club Solitaire”. There is no mentioned in the allotment letter that the Multi Purpose Hall for Birthdays/Receptions/Conferences and swimming pool are part of sports and health club and hence the same cannot be maintained and charged separately by OPs.

(xxi)      As per the allotment letter, the proportionate share of common areas has been divided among the flat owners based on which super built up area of flat have been arrived at. Thus, the restrictions/ charges imposed by the OPs for use of common areas and common facilities are in gross violation of agreement.

(xxii)      The OPs are also planning to charge for 1KVA Power Backup, indoor Games, Gym, and Swimming Pool etc. in violation of the terms of the agreement.

               The aforesaid defects have not been rectified by the OPs, even after issuance of legal notice dated 11.06.2014.  Thus the complainants have sought following directions to the OPs:

 (a)    To rectify all the defects and provide facilities as per agreement.

(b)    Not to charge maintenance for the facilities which have not been provided and only after getting completion certificate from PUDA.

(c)   To pay them Rs. 16 lacs for deficiency in service and unfair trade practice and Rs. 50,000/- as litigation expenses.

2.             The OPs in the written statement have pleaded that his Forum does not have the jurisdiction to entertain and try the complaint.  The OPs had agreed to issue offer of possession by 31.03.2012 subject to various conditions as agreed. There was no such term in the agreement for providing the completion certificate to the complainants. There are no short comings/problems in the flats. Best quality of oil bound distemper/POP/Putty has been used. RO system has been provided as per agreement. Lifts in the complex have been provided as per agreement.  The OPs have provided modular kitchen in each and every flat and the wood used is also of quality which was committed. Anti skid tiles have been provided in the bathroom of master bed room. Wood frames and door shuttering and window shutters have been provided as advised by the Architects. The OPs have denied the allegation of using of unbranded and inferior quality of showers and other fittings. Intercom facility has been provided to all the flat holders. The parking area was never sold by the OPs. The OPs have provided effective security which keeps complete vigil day and night. The operation, running, repair, maintenance and management of the complex were the joint responsibility of various allottes buying the flats. The OPs had to render all such services either directly or through its nominated agency by charging monthly maintenance charges as and when demanded.  Such services are being provided since the due date of taking over possession of the flats by the complainants.   The complainants have paid maintenance charges only for a period of one year. The complainants are liable to make payment with interest @ 24% per annum. The power back up facility upto the agreed extent is available in the complex. The flats were allotted provisionally based on super area as agreed which was subject to change due to various additions deletions, alterations, modifications during the course of instruction affecting the cost.  The share of the complainants in common area is clearly defined in Clause 4 and Clause 10 of the provisional allotment letter.  The use of all the facilities is subject to payment of separate charges as per terms agreed in clause 8 (2) of the allotment letter.    Thus, denying any deficiency in service on their part, the OPs have sought dismissal of the complaints.

3.             Parties have led their respective evidence in support of their case.

4.             We have heard learned counsel for the parties and gone through their written arguments.

5.             Admittedly all the complainants are in possession of the flats and have got their flats registered with the revenue authorities by way of sale deeds. The dispute raised in the present complaints is on four counts i.e. (i) regarding delay in handing over the possession for which the complainants are seeking compensation as per agreed rate of penalty for delayed possession beyond the stipulated date of possession; (ii) lack of basic amenities and facilities contrary to promised facilities as per brochure; (iii) maintenance charges and (iv) patent and latent defects in the individual flats.

6.             Regarding delay in possession of the flats as per the complainants the committed date of possession of the flats was 31.03.2013 whereas the actual possession has been handed over to the complainants on different dates after delay ranging from 6 to 12 months as shown in the list of all the 15 flat owners attached with the written arguments. Therefore, all the complainants have prayed for invoking penalty clause as per clause-6 of allotment letter Ex.C-1. 

7.             The plea of the OPs in this regard is that the complainants are not entitled to invoke penalty clause as the delay in possession is not imputable to the OPs. Rather it is the complainants who themselves have defaulted in making the due payments as per the agreed due date of installments and, therefore, since the complainants have failed to make payments in time, which caused delay in handing over the possession. Therefore, the OPs have prayed that the complainants cannot take benefit of their own wrongs and are not entitled to any penalty. In order to show the delay of payments, the OPs have submitted a separate statement alongwith the written arguments showing the flat-wise/complaint-wise detail in discharging their financial liability by the complainants. The comparative statement of both the statements i.e. the statement produced by the complainants as well as by the OPs leads us to the conclusion that the delay in delivery of possession has occurred due to the acts of omission and commission of complainants themselves and not imputable to the OPs in any manner. Time is the essence of contract which is binding and requires to be honoured by both the parties signatory to the contract. Therefore, the claim of the complainants of invoking penalty clause for delay of possession is ill founded and is not maintainable.

8.             The next issue is regarding lack of defective/incomplete basic facilities and amenities in the complex. As per the complainants the OPs have promised the capsule lift, AC lobby, steam room, sauna Jacuzzi, spa, separate children poll, power back up, club solitaire (sports and health club) fire fighting, rain water harvesting, water supply to the flats through RO system etc. as agreed in the allotment letter Ex.C-1. Out of the agreed amenities and facilities capsule lift, AC Lobby, steam room, fire fighting, rain water harvesting and club solitaire, power back up etc. have not been provided though the OPs have charged for the same as per terms of allotment letter. In this regard, we have perused Clause C-7, 8, 9 and 10 of Ex.C-1 governing the said facilities. In order to prove non existence of these facilities, the complainants have relied upon the photographs submitted during the course of proceedings. Perusal of the photographs show that these photographs pertain to inside of the flats and not common facilities and amenities like club house, power back, capsule lift etc.  Response of the OPs in this regard is that all the basic facilities and amenities are in place, had they been missing, these being the patent defects, well within the knowledge of the complainants and they have never raised any grievance or objection at the time of taking over the possession and registration of sale deeds. Thus, the allegation of defective and missing facilities is an afterthought of the complainants and is not maintainable. We are in full agreement with the OPs in this regard and the complainants are not entitled to any relief for this.

9.             Regarding maintenance charges, admittedly the complainants have paid maintenance charges for one year and thereafter have not paid any amount. The complainants have not shown any receipt of payment of maintenance charges upto date.  As per Clause 17 of allotment letter of Ex.C-1, it is the joint responsibility of the allottees as well as the company i.e. the OPs to maintain, operate, run, repair, common facilities, common services, land scapping, roads, parking and social security inside the complex. The said services are to be maintained by the OPs either directly or through its nominated agency after handing over possession of the flats. For maintenance the OPs are entitled to charge monthly maintenance charges/interest free maintenance security. Admittedly, the OPs have decided to provide the management and maintenance of facilities and charged Rs.2,800/- per month for 4 BKH flat, Rs.2,500/- per month for 3 BKH flat and Rs.2,000/- per month for 2 BKH flat. The said amount has been received by the OPs for the whole year after handing over of possession of the respective flats to the complainants. The payment and receipt of said monthly maintenance charges is not disputed. The grievance of the complainants is that despite having paid the said charges, the OPs have failed to maintain the common facilities like roads which require major repairs as the water remains stagnant in the area. There is problem of power back as the same has not been started yet, Lifts and street lights are missing, Club gym is without equipment and security system is very poor as many CCTV cameras are not in operation. The project maintenance staff is not well trained and polite to the residents. So much so even the occupation certificate has not been granted in favour of the OPs. In this regard the complainants have drawn our attention to Ex.C-8 i.e. representation dated 12.12.2013 duly signed by all the residents including the present complainants drawing attention of the OPs to remove the defects and augment proper  and effective maintenance services and these problems are still in existence. The OPs have failed to show any corrective steps taken by them in this regard. In order to resolve the controversy, we had suggested a joint inspection of the representative of the complainants as well as OPs to know the ground reality but unfortunately no joint inspection was conducted by them as the OPs have failed to reach on the spot on the designated date and time due to their pre-occupation in a police station in criminal complaint pending against them. However, as per affidavit submitted during the course of proceedings by the OPs the joint inspection was conducted on the next day but the affidavit is silent about the outcome of such a joint inspection. Therefore, despite availing the opportunity the OPs have not come up with any solution to the existing problems of maintenance of the complex. The stand of the OPs that the complainants have failed to pay maintenance charges after one year as no demand notice has been shown on record but definitely once the complainants have not received the agreed maintenance services after payment of advance amount for the whole year they will not pay for the subsequent years in the absence of those facilities which as on date are missing and not addressed by the OPs despite having got opportunities to do so. Thus, the grievance of the complainants in this regard is well proved.

10.           Regarding latent defects appeared in the individual flats once the complainants have started using the flats after execution of the sale deeds. In this regard, the complainants have brought to our notice certain defects/deficiencies like oil bound distemper and POP not done, RO treated water supply not provided, modular kitchen not provided, anti skid tiles in the bathroom of master bed room not provided, wood work is not as per agreement, jaquar or equivalent bath fittings not provided, intercom facility not provided. Further in one particular flat i.e. in complaint No.526 of 2014 though the complainant has paid for parking and specific slot has been allotted to him, yet the same has been used by the OPs for storage office dead stock and this act of the OPs amounts to unfair trade practice.  In order to prove the grievances, the complainants have relied on the photographs showing the defects and there is no rebuttal to these defects from the side of the OPs. Thus, the complainants have proved latent defects which they have noticed in the flats upon usage and the same remains unattended to by the OPs and the acts of the OPs amounts to deficiency in service and unfair trade practice.

11.           Thus on the basis of evidence as appreciated above the complainants have proved their case of latent and patent defects and deficiencies in the flats in question. Therefore, the complaints deserves to be allowed and the complainants are deserves to be compensated.  For awarding the quantum of compensation we take the support of the judgment of the Hon’ble National Commission in M/s. Sahara India Commercial Corporation Ltd. & Ors. Vs. Mukamala Nataraja Rao & Anr. First Appeal No.393 of 2006 decided on 09.09.2014.

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

(a)    to remove/rectify the defects in the flats of the complainants as specified and highlighted by the in their respective complaints particularly oil bound distemper and POP, provision of RO water supply throughout the flat and not only in kitchen as is being done, provide modular kitchen, anti skid tiles in the bathrooms and master bed room, wood work as per agreement and intercom facility within the flats.  This exercise be conducted within a period of three months from the date of receipt of a certified copy of this order.

(b)    To complete all the basic  facilities and amenities as per terms of allotment letter within a period of six months from the date of receipt of a certified copy of this order and not to charge the maintenance of common areas and facilities from the complainants till the existence of complete, proper and effective basic amenities and facilities.

(c)    to refund the amount received from the respective flat owners on account of maintenance charges received till date alongwith interest @ 9% per annum till realization within a period of thirty days from the date of receipt of a certified copy of this order.

(d)    to pay a lump sum compensation of Rs.50,000/- (Rs. Fifty thousand only) to each complainant for causing mental agony, harassment and costs of litigation within a period of thirty days from the date of receipt of a certified copy of this order.

(e)    to get the completion certificate from the competent authority and provide a copy of the same to all the flat owners including the present complainants within a period of thirty days from the date of receipt of a certified copy of this order.

(f)     to refund Rs.7,000/- (Rs. Seven thousand only) to complainant Balbir Singh & another in complaint No.526  of 2014 within a period of thirty days from the date of receipt of a certified copy of this order charged for parking lot alongwith rate of interest @ 9% per annum and remove the dead stock stored by the complainant from the parking slot allotted to the said complainant with immediate effect.

                Copies of this order be placed in the connected files. 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.                           

May 28, 2015.  

                                            (Mrs. Madhu P. Singh)

                                                                        President

                                                        (Amrinder Singh)

Member

(Mrs. R.K. Aulakh)

Member