BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAS NAGAR, MOHALI
Consumer Complaint No.607 of 2014
Date of institution: 07.10.2014
Date of Decision: 26.05.2015
Karnail Singh son of Mukhtiar Singh, resident of House No.897, Sector 79, Top Floor, Mohali
……..Complainant
Versus
1. Unitech Limited, Uniworld City, Sector 97 Mohali (Punjab) through its authorized officer.
2. Unitech Limited, Real Estate Division, SCO 189-90-91, Sector 17-C, Chandigarh through its authorized officer.
3. Unitech Limited, Real Estate Division (Marketing) 5th Floor, Tower-A, Signature Towers, South City I, NH-8, Gurgaon through its Managing Director.
………. Opposite Parties
Complaint under Section 12 of the
Consumer Protection Act, 1986.
CORAM
Mrs. Madhu. P. Singh, President.
Mrs. R.K. Aulakh, Member.
Present: Shri Vishal Goel, counsel for the complainant.
Ms. Vertika H. Singh, counsel for the OPs.
(Mrs. Madhu P. Singh, President)
ORDER
The complainant has filed the complaint with the following direction to the Opposite Parties (for short ‘the OPs’) to :
(a) pay him Rs.12,56,580/- for increase in cost of construction material.
(b) to pay him Rs.1.00 lac for damages for non fulfilling of terms of maintenance and service agreement.
(c) pay him Rs.22,000/- as counsel fee.
The complainant purchased plot measuring 300 sq. mtr/358.80 sq. yards from the Opposite Parties (for short ‘the OPs’). An agreement was executed between the OPs and one Deepmala Mittal on 01.04.2008. The complainant has purchased the flat from Deepmala Mittal. As per the agreement the plot was to be delivered within 36 months from the date of agreement but the OPs failed to deliver the possession within stipulated period. The complainant filed a complaint before the Chandigarh Forum and during pendency of the complaint the OPs delivered possession of the plot which is just a piece of land without having any basic amenities like water, electricity, sewerage connection roads etc. After possession of the plot, a maintenance agreement was signed between the parties on 07.06.2014 and as per Clause 3.1 of the agreement it commenced from 15.06.2014. The complainant had to pay the maintenance charges @ Rs.2/- per sq. yards per month in advance upto 31.03.2017. As per this agreement the complainant paid the full amount of maintenance upto 31.03.2017. As per the agreement the OPs were bound to provide basic amenities like sanitation, water supply, power supply etc. The complainant now started the construction work from June, 2014 but due to non provision of basic amenities the complainant suffered monetary loss as the complainant had to pay for water tanker and generator set for construction of the plot. The OP also delivered the possession after three years that too without basic amenities. Due to delay in possession the complainant had to suffer loss of escalation of cost of construction material.
2. The OPs in their written statement have pleaded in the preliminary objections that the complaint is beyond pecuniary jurisdiction of the Forum as the complainant has sought relief on the total value of the plot being Rs.53,37,150/-. The complainant has concealed material fact from this Forum as he was compensated for Rs.6,67,164/- by way of adjustment in his final installment which the complainant willingly accepted without any protest or demur. On merits, it is pleaded that the roads are in place and all the sewerage lines have already been laid down. The OPs have been providing water facilities to the complainant for construction and are taking steps to ensure that remaining electricity issue is also resolved and be provided at the earliest as the electricity route has been sanctioned by GMADA vide letter dated 24.06.2014. The developer/maintenance agency is not under obligation to provide services and amenities for construction at the plot. As per clause 2 of the agreement services are to be provided to the allottees only when they complete construction of the houses. However, the complainant is being provided water through water tankers on regular basis as per requirement. The complainant was bound to pay the entire amount of maintenance charges in advance as per Clause 3.a of the Buyers agreement dated 01.04.2008. The possession was delivered to the complainant under due pressure from him. The delay in possession was beyond the control of the OPs. The appeal filed by the complainant was dismissed by the Chandigarh Forum for want of pecuniary jurisdiction vide order dated 25.06.2014. As per Clause 4 (c) of the agreement OPs paid an amount of Rs.6,67,164/- to the complainant vide cheque dated 28.05.2014 on account of delay in possession. Denying any deficiency in service on their part, the OPs have sought dismissal of complaint.
3. Evidence of the complainant consists of his affidavit Ex.CW-1/1 and copies of documents Ex.C-1 to C-7.
4. Evidence of the OPs consists of affidavit of A.P Singh, their Authorised representative Ex.OP-1/1 and copies of documents Ex.OP-1 and Ex.OP-2.
5. We have heard learned counsel for the parties and gone through their written arguments.
6. Admittedly the complainant has received the possession of the plot in question during the pendency of the complaint No.775 of 2013 before District Forum, Chandigarh. Once the complainant has received the possession of the property he has signed a maintenance agreement Ex.C-1. As per agreement the complainant has paid the maintenance charges @ Rs.2/- per sq. yard per month in advance from 15.06.2014 to 31.03.2017. The OPs have issued receipt for the amount received on account of maintenance charges as Ex.C-5. The grievance of the complainant is that on the one hand the basic amenities like sanitation, water supply, power supply etc. are missing on the ground and on the other hand the OPs have charged maintenance charges for those facilities which are not in existence. Thus, the act of the OPs in this regard is an act of deficiency in service and unfair trade practice. Further the complainant has alleged that due to delay in possession he has suffered financial loss due to escalation in the cost of construction.
7. The execution of the maintenance agreement is not disputed. The payment of maintenance charges from 15.06.2014 to 31.03.2017 is not disputed. The question for determination is whether the basic amenities like sanitation etc. are in existence on ground or not. Regarding the existence of basic facilities and amenities the OPs have taken a categoric stand in para No.3 of the reply that all the facilities are in existence. However, perusal of para 3 of the written statement is giving entirely different picture. The OPs themselves have admitted that all the sewerages lines have been laid down but it is no where shown whether the sewerage facility is in operation or not. Further regarding electricity the OPs themselves have admitted that they have received the sanction from GMADA on 24.06.2014 whereas maintenance agreement has been executed on 07.06.2014 much prior to permission of electricity route granted by GMADA. Even there is admission regarding water supply that there is no regular potable water supply and the water is being supplied through water tankers. Thus, on the basis of admission of the OPs, it is ample clear that the basic amenities and facilities are missing and are not in existence. The response of the OPs is absolutely silent about the orders dated 29.12.2014 passed by this Forum in Consumer Complaint No.316 of 2014 titled as Paramjit Kaur & another Vs. Unitech & others regarding providing of the basic amenities within 3 months which was also the subject matter of that complaint, as in the present complaint. It is abundant clear that the OPs have not developed those basic facilities and amenities which necessitated the present complainant to approach this Forum. Thus OPs are not entitled to charge the maintenance that too in advance for three years for the non existence facilities.
8. So far as the grievance of the complainant regarding delay in delivery of possession causing financial loss to the complainant due to escalation of construction cost is concerned, the perusal of orders of the District Forum, UT Chandigarh in this regard has already taken care of as the complainant has been compensated at the agreed rate of penalty clause of the agreement. Therefore, in this regard the grievance of the complaint is ill founded.
9. Hence the complaint is allowed with the following directions to the OPs:
(a) to refund of Rs.24,040/- (Rs. Twenty four thousand forty only) with interest @ 9% per annum w.e.f. 13.05.2014 till actual payment and not to charge any maintenance charges till the facilities are in place.
(b) to ensure the basic facilities of water, electricity, sanitation as per the maintenance and service agreement dated 07.06.2014 are in a place within a period of three months from the date of receipt of a certified copy of this order.
(c) to pay a lump sum compensation of Rs.1,00,000/- (Rs. One lac only) on account of 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.
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 26, 2015.
(Mrs. Madhu P. Singh)
President
(Mrs. R.K. Aulakh)
Member
