Chandigarh

StateCommission

A/209/2016

Arundeep Kaur - Complainant(s)

Versus

Ansal Lotus Melange Projects Pvt. Ltd. - Opp.Party(s)

Ravinder Pal Singh, Adv.

21 Jul 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Appeal No.	:	209 of 2016
Date of Institution	:	19.07.2016
Date of Decision	:	21.07.2016

1. Arundeep Kaur w/o Sh. Harpreet Singh, resident of Flat No.701, Tower No.9, Orchard County, Sector- 115, Mohali.

2.  Harpreet Singh S/o Late Sh. Chanan Singh, resident of Flat No.701, Tower No.9, Orchard County, Sector 115, Mohali.

                               ……Appellants/Complainants

V E R S U S

1. Ansal Lotus Melange Projects Pvt. Ltd., Registered Office at 1/18B, Asaf Ali Road, New Delhi 110002, through its Managing Director.
2. Ansal Lotus Melange Projects Pvt. Ltd., Regional Office at SCO No.183-184, Sector 9-C, Chandigarh, through its Assistant Manager/Authorized Representative.

                        …….Respondents/Opposite Parties

 

         Appeal under Section 15 of the Consumer Protection

               Act, 1986.

 

BEFORE:      JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

 

 

Argued by:        Mr.Ravinder Pal Singh, Advocate for the appellants.

                               

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

      The appellants, who were the  complainants, have filed this appeal against an order dated 3.5.2016 vide which their complaint was partly allowed by the District Consumer Disputes Redressal Forum-I, U.T.Chandigarh (for short the Forum), granting them the following relief;

  i)     To refund the amount of Rs.1,86,200/-to the complainants with interest @ 9% per annum from the date of payment till realization by the complainants.

ii)    To pay an amount of Rs.20,000/- as compensation to the complainants on account of mental agony and harassment caused to them and deficiency in service and unfair trade practice on the part of the OPs.

iii)   To also pay an amount of Rs.10,000/- towards litigation expenses to the complainants.

2.         Before the Forum, it was their case that they had purchased one built-up Unit measuring 1798 sq.ft on 6.4.2011 by making payment of earnest money of Rs.4,40,510/-. Vide letter dated 8.7.2011, they were allotted flat No.701 in Tower No.9 of the Project developed by the respondents/opposite Parties. Total price of the Unit  fixed was  Rs.44,05,100/-. Possession of the Unit was offered on 28.7.2013. Physical possession was taken over by the appellants on 6.9.2013. It was alleged that quality of construction and material used was poor.  It was their case that they have wrongly been charged an amount of Rs.1,00,000/- for providing space for car parking.  In their complaint, appellants had claimed refund of an amount of Rs.98,668/- allegedly charged by the respondents from them in excess.  Further prayer was made to refund an amount of Rs.1,86,200/- wrongly charged on account of increase in area of the Unit.  Further an amount of Rs.1,00,000/-was also claimed which was paid for providing space for car parking. Besides above amount, compensation for mental agony and litigation expenses were also claimed.  

3.     Upon notice, reply was filed by the respondents/opposite parties disputing territorial jurisdiction of the Forum ; further stating that on account of disputed facts involved, the matter cannot be decided in a summary manner. Status of appellants as ‘consumers’ was also disputed by saying that they had purchased the property only to gain profit in future.  Deficiency in providing service, as alleged, was denied.

4.        Both  parties led their respective evidence.

 5.       The  Forum, after hearing Counsel for the parties, and, on going through the pleadings and analyzing evidence on record, rightly came to a conclusion that the allotment letter was duly signed by both the parties.  It was given in writing by the appellants that they accept the allotment made with terms and conditions mentioned in the said document.  During subsistence of the Agreement, till taking over of possession of the built up Unit on 6.9.2013,  no objection qua validity of sale agreement/allotment letter was ever raised. Dispute was raised  only when  this complaint was filed after 1 year and 3 months of getting  possession.  The Forum has rightly rejected a contention raised by the appellants that allotment letter dated 8.7.2011 was not  a valid document and binding upon the parties. Further contention of the appellants for refund of Rs.1,00,000/- towards space provided for car parking was also rejected taking note of the terms and conditions mentioned in the allotment letter dated 8.7.2011.   In that letter, it was stipulated that the above said amount of Rs.1,00,000/- would be paid towards car parking by the appellants.  Once allotment letter dated 8.7.2011 which is a valid agreement of sale between the parties, its terms and conditions are binding on both the parties. Further contention of the appellants that quality of construction and material used was poor, was rightly rejected by  the Forum by noting that there was no expert evidence on record to say so. To grant refund of an amount of Rs.1,86,200/- paid by the appellants towards alleged increase in  area of the Unit, it was rightly said that as per Local Commissioner Report the said amount was not payable by the appellants.  It is on  record that as per allotment letter super area of the Unit was shown as 1798 sq.ft. The appellants were charged for the super area measuring  1874 sq.ft.  It is not in dispute that as per terms and conditions of the allotment letter  dated 8.7.2011, area allotted originally was tentative and was likely to increase or decrease at the time when possession was to be delivered. The Forum, by taking note of Local Commissioner’s report, rightly awarded  an amount of Rs.1,86,200/- alongwith interest @9% p.a. to the appellants. It is necessary to mention that as per report  made by the Local Commissioner, super area of the Unit is 1745 sq.ft. However, the said super built up area  does not include the proportionate area  in which  club house,  swimming pool, basement parking  etc. were developed.  The report was disputed by the respondents. However, their objections were rejected by the Forum by observing as under ;

 “ The above said report of the Local Commissioner has been disputed by the OPs on the ground that the areas mentioned in the report of Local Commissioner is not complete. The built up/ super area provided by the Company is not calculated by the Local Commissioner to full satisfaction of the area handed over by the Company to the Complainants/allottees. While the final area measurement was calculated by the Local Commissioner is arbitrary and incomplete and no summary sheet of bifurcation of the areas are provided. The complete summary sheet of areas measurement provided at the time of offer of possession can be corroborated from the MB sheets and the summary sheets. The same are placed on record which has the same bifurcation and both are matching. The areas provided in MB sheets and thereafter in summary sheets is final area measurement which has been charged by the Company from the allottees/ Complainants.   

        We have given our thoughtful consideration to the above arguments of the OPs but we regret our inability to accept the same because the architectural drawings called as ‘MB Sheets’ submitted by the OPs pertains to the Tower No.7 whereas the Flat of the Complainants is located in Tower No.9. Further, it is observed that the MB sheets which was although of Tower no.7 bears no stamp of the competent authority which could show that the same design has been passed by the competent authority. Sh. Praveen Rajput the Architect of the OPs has nowhere submitted in his affidavit that he has ever inspected and measured the flat of the Complainants and compared the same with the original MB sheets of the Complainants’ flat in question as submitted with the competent authority.

        We are of the opinion that the measurement report of Sh. Sujay Sengupta, Assistant Prof., Local Commissioner is based on sound reasons and actual measurements and there is no reason to disbelieve that the super area of the apartment of the complainants was found to be 1745 sq. ft. instead of 1798 sq. ft. It is important to note that the complainants in their complaint have made a request to refund the sum of Rs.1,86,200/- charged illegally on the pretext of enhanced super built area.  There is no such plea in the complaint that the super built area of the flat is less than 1798 sq. ft. and the OPs are liable to refund the amount beyond 1745 sq. ft.  Consequently, we are of the view that the complainants are entitled to the refund of Rs.1,86,200/- illegally charged by the OPs.  The demand of the OPs of an amount of Rs.1,86,200/- representing the super area as 1874 sq. ft. is illegal.  The OPs are guilty of unfair trade practice in recovering the amount of Rs.1,86,200/- from the complainants.”  

 6.           It was rightly noticed that super area of the Unit is less.  It was also noticed that the said super area does not include the proportionate share in area for common purposes. In their complaint for about deficiency, appellants had prayed for refund of Rs.1,86,200/- with interest which was rightly granted by the Forum.  No case is made out by the appellants, to make any  interference, in the order under challenge.        

7.        For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, at the preliminary stage, with no order as to costs. The order of the District  Forum is upheld.
8.        Certified copies of this order, be sent to the parties, free of charge.
9.        The file be consigned to Record Room, after completion.

Pronounced.

21.07.2016

                   Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

                                                                    Sd/-

(DEV RAJ)

MEMBER

 

 

                                                      Sd/-

(PADMA PANDEY)

       MEMBER

 

 

JS