Chandigarh

DF-II

CC/450/2014

Mrs. Baljeet Sandhu - Complainant(s)

Versus

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

Ravinder Pal Singh, Adv.

28 Oct 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

 

 

Consumer Complt. No.	:	450/2014
Date of Institution	:	01.09.2014
Date of Decision	:	28.10.2015

 

 

 

                  

    

 

Mrs.Baljeet Sandhu w/o Sh.Jatinder Kumar, H.No.318, Phase-1, Mohali.

 

                   ...  Complainant

Versus

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 Sr.General      Manager.

 

…. Opposite Parties

 

 

BEFORE:  SHRI RAJAN DEWAN, PRESIDENT

SHRI JASWINDER SINGH SIDHU, MEMBER

SMT.PRITI MALHOTRA, MEMBER

 

Argued by: Sh.R.P.Singh, Counsel for the complainant.

           Sh.Vaibhav Narang, Counsel for the Opposite Parties

 

PER JASWINDER SINGH SIDHU, MEMBER

 

          As per the case, the complainant with an intention to settle down near Chandigarh and to own a residential flat for the residential purpose of her family, she agreed to purchase a 3 BHK flat from the OPs in their residential project Palm Grove, Sector 115, situated on the Kharar-Landran Road, District Mohali. Accordingly, the complainant booked a flat measuring 1525 sq. ft. bearing No.24 GF at the rate of 1885.24/- per sq. ft., which comes to at a total price of Rs.28,75,000/-,  by paying a sum of Rs.3,00,000/- through demand draft dated 6.6.2009. Thereafter, on 24.06.2009 an allotment letter was signed between the complainant and the OPs. The complainant also availed housing loan of Rs.23.00 lacs from HDFC Bank Ltd. which has been disbursed by the bank to the OPs from time to time on behalf of the complainant as per progress of the construction. The possession of the said flat was to be given within 24 months i.e. by 24.6.2011 from the date of allotment.  According to the complainant, the allotment letter was not in consonance with Section 6 of the Punjab Apartments and Property Regulation Act, 1995.  It is averred that the OPs at their own increased the super area of the flat by 153 sq. ft. i.e. from 1525 sq. ft. to 1678 sq. ft. at the time of offering possession, which was never disclosed to her prior to 08.10.2012 (Ann.C-4) nor obtained her consent and burdened the complainant with another sum of Rs.2,88,442/- + service tax Rs.8,913/- whereas infact the super area has not been enhanced as claimed by the OPs.  The OPs also charged an amount of Rs.30,155/- as interest on delayed payments whereas the complainant had made all payment well in time and there was no delay on her part. Further, the OPs have charged the complainant an amount of Rs.60,000/- for open car parking which was shown in the brochure to be provided in front of the flats across the road, whereas the OPs have allotted the open car parking just along the entry road and the car parking is far away from the complainant’s flat.  Furthermore, the OPs had forced the complainant to deposit Rs.25,000/ - interest free security deposit and maintenance charges of Rs.11,312/- for the period prior to the possession i.e. from 01.01.2013 to 31.3.2013 with Star Facilities Management Limited, Sector 9-C, Chandigarh, which is a subsidiary company of the Opposite Parties.  The complainant in total made payment of Rs.34,31,967/-.   The Opposite Party No.2 offered the possession of the flat to the complainant vide their letter dated 21.8.2012 (Ann.C-12), but the actual physical possession was delivered on 17.3.2013 i.e. after delay of about 21 months.  It is pleaded that after taking possession, it has came to her knowledge that there is seepage in all the bedrooms of the flat especially towards the floor of each bed-room which damaged the wall paint and after taking the possession, the complainant has repaired the said paint twice but of no avail.  It is also pleaded that the water drainage system in the bathroom of the flat is defective as due to the blockage of water in one bathroom all the water logged in the bathroom and also gone towards bedroom wherein there is wooden flooring, which has been damaged due to the poor drainage system in the bathroom.  Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of the OPs, the complainant has filed the instant complaint.

2]        In its written reply, the OPs have taken a number of preliminary objections including that disputed questions of fact and law are involved in the present case which cannot be decided in summary proceedings; that the complainant has got no locus standi to file the present complaint. It has been averred that since all the payments have been made and the possession has been taken by the complainant, after duly satisfying herself, as such she is estopped from filing the present complaint.  It has been further averred that Clause 11 of the allotment agreement contemplated certain conditions on the fulfilment of which the possession has to be delivered in 24 months. It has been pleaded that the allotment agreement has been signed on 2.9.2009 even as per allotment agreement, the possession has to be given within 24 months, which expires on 2.9.2011.  Thereafter, the construction was completed in Jan., 2012 and completion certification was complied on 23.1.2012 with the Municipal Council, Kharar (Ann.R-2).  Thereafter, the completion certificate was granted to the Opposite Party On 9.5.2012 (Ann.R-3).  After obtaining the completion certificate, the offer of possession has been made on 21.89.2012 (Ann.C-12), thus there is minor delay of 2-3 months, which can arise in any construction of high rise building and there is not any inordinate delay.  However, the complainant herself delayed for taking the possession, which she took only on 17.3.2013 i.e. after almost 7 months after the offer of possession.  It has been pleaded that as per clause 8 & 9 of the allotment letter, OP was entitled to charge the amount for the increased area and there is no illegality to that extent. Further, as per clause 8 and 9 of the allotment agreement, the complainant had given her unconditional consent to any variation and modification in the area. It has been pleaded that nothing was charged by the OP which was beyond the terms and conditions of the allotment agreement. Pleading that there is no deficiency in service or unfair trade practice on its part, OP has prayed for dismissal of the complaint.

3]        The complainant filed rejoinder to the written reply of the Opposite Party controverting its stand and reiterating his own.

4]        The parties led evidence in support of their contentions.

5]        We have heard the ld.Counsel for the parties and have also perused the record.

6]          The preliminary objection of the OP is that the disputed questions of fact and law are involved in the present case which cannot be decided in summary proceedings and as such the complaint is liable to be relegated to the Civil Court but we find no force in this plea of the Opposite Party because the facts of the case do not require a detailed and complicated investigation of facts incapable of being undertaken in a summary and speedy manner.  Thus, there is no need to relegate the complaint to Civil Court.

7]        The complainant has next contended that OP has made an illegal demand of Rs.60,000/- on account of car parking, which is located in the common area of the society and the builder cannot sell the same. It has also been contended that the OP is not entitled to overcharge towards any area which was actually never increased or to charge any amount towards open car parking space. The complainant in this regard has referred to a judgment of the Hon’ble Supreme Court titled Nahalchand Laloochand Pvt. Ltd. Vs. Panchali Co-operative Housing Society Ltd.-Civil Appeal No.2544 of 2010 decided on 31.8.2010. However, we are not impressed with the above contention because as per case of the OP, the summary of dues attached with the allotment letter shows that an amount of Rs.60,000/- was to be paid by the complainant towards open car parking space. It is also stated that the said summary of dues is duly signed by the complainant. However, the complainant has produce on record the copy of summary of dues attached with the allotment letter Ann.C-1 Page 39, which clearly shows that an amount of Rs.60,000/- was to be paid towards car parking.  The complainant cannot wriggle out of the amount mentioned in the allotment letter duly signed by her. The ruling Nahalchand Laloochand Pvt. Ltd. Vs. Panchali Co-operative Housing Society Ltd. (supra) cited by the complainant relates to Maharashtra Ownership Flats (Regulations of Promotion Construction Sale, Management & Transfer) Act, 1963 and the same is not applicable to the facts of the present case. Hence, at this stage it cannot be contended by the complainant that the OP is not entitled to the car parking charges of Rs.60,000/-.

8]        The next question, which falls for consideration, is, as to whether, the OP was right in recovering the maintenance charges and Rs.25,000/- towards interest free security deposit from the complainant? To appreciate this controversy, we consider it appropriate to refer to Clause 24 of the allotment letter, which is extracted hereunder:-

“24. THAT the Company shall look after the maintenance and upkeep of the Common areas and facilities until these are handed over to some bodycorporate or other agency nominated by the Company for maintenance, upkeep, repairs, security etc. of the building (s) including the landscaping and common areas. The Apartment Allottee agrees and consents to the said arrangement and he shall pay interest free security deposit to be worked at the time of handing over of possession on super area basis and maintenance charges determined by the company or its nominee from time to time depending upon the maintenance cost. In addition to maintenance charges, there will be contribution to the Replacement fund etc. Any delay in payments will make the Allottee liable for interest @18% per annum. Non payment of any of the charges within the time specified shall also disentitle the Apartment Allottee to the enjoyment of common services including lifts, electricity, water etc. The Allottee also undertakes to execute a separate agreement with the maintenance agency in the usual format which has been seen and approved by the Allottee.”

          It is clear from the afore-extracted clause that the complainant agreed and consented to pay interest free security deposit to be worked at the time of handing over of possession on super area basis and maintenance charges determined by the OP from time to time depending upon the maintenance cost. Therefore, such charges were legally payable by the complainant and the payment thereof does not amount to any unfair trade practice.

9]        The next contention of the complainant as alleged is that the quality of construction work is sub-standard, wooden flooring is decaying, there is water seepage through the walls.  The allegations of the complainant has denied by the OP.  It has been contended that there are the quality of construction work is good.  It has been averred that the complainant before taking the actual physical possession had enough time to satisfy herself regarding the quality, facilities and comfort in the project and after making payment without any protest or demur, her objections are meaningless. 

10]       The complainant has next contended that the OP at its own has increased the super area of the flat from 1525 sq. ft. at the time of booking to 1678 sq. ft. at the time of offering possession. It has been contended that the consent of the complainant was not obtained for increasing the area and the complainant has been burdened with another sum of Rs.2,97,355/- including service tax. The complainant has urged that the OP be directed to refund the amount charged for increasing the area.

11]       We have given our thoughtful consideration to the above contentions of the complainant. As per allotment letter Annexure C-1 the total super area of the apartment was 1525 sq. ft. approximately. Clause 8 and 9 of the allotment letter also show that the plans, designs, specifications shown to the allottees were tentative. The said plans and specifications were accepted by the allottees with such additions, deletions, alterations, modifications in the lay out, building plans etc. or change of entire scheme by the company. Since each page of the allotment letter is signed by the complainant and there is no averment that the allotment letter was signed under any mis-representation, fraud, inducement or coercion, it would be deemed that the allotment letter was signed by the complainant with open eyes and after understanding the terms and conditions of the same. Otherwise also, the complainant cannot challenge the terms and conditions of the allotment letter registered on dated 24.6.2009, before this Forum in the year 2014, and even if the terms and conditions were to be challenged, the same could have been challenged in the civil court within the period of limitation. Since the complainant is bound by the terms and conditions of the allotment letter, there is no merit in this contention that the super area of the flat could not be increased from 1525 sq.ft. onwards.

12]        The next question that arises for determination is whether the super area of the apartment of the complainant has actually been increased from 1525 sq. ft. to 1678 sq. ft. or not?  

13]       The complainant in order to fortify the claim with regard to their pleadings vis-à-vis super built-up area , as claimed by the OP, and as is existing at the site, has preferred to move an application dated 6.5.2015 for appointment of the Local Commissioner, which after due consideration was allowed by this Forum vide order dated 7.7.2015. The report dated 07.08.2015 was received from the Local Commissioner  who categorical mentioned in his report the carpet area of the flat in question as 986 sq. ft. (approx..) and super built up area of 1611 sq. ft. (approx.).     However, the OP did not file any objections to the said report of Local Commission dated 7.8.2015.

14]       We are of the opinion that the report of the Local Commissioner is based on sound reasoning and actual measurements and there is no reason to disbelieve that the super built up area of the apartment of the complainant was found to be 1611 sq. ft. instead of 1678 sq. ft. as claimed by the OP.  In this view of the matter, the demand of the OP for an amount of Rs.2,97,355/- including service tax representing the super area as 1678 sq. ft. is illegal.  Since the complainant has already made the payment of Rs.2,97,355/- including service tax, the OP is required to re-calculate the amount after treating the super area to be 1611 sq. ft. instead of 1678 sq. ft. and refund the excess amount charged from the complainant

15]       For the reasons recorded above, we find merit in the present complaint and the same is partly allowed against the Opposite Parties No.1 & 2 and directed jointly & severally as under:-. 

i)   To recalculate the amount of super area by treating the same to be 1611 Sq. ft. instead of 1678 sq. ft. and refund the excess amount charged from the complainant.

ii)  To pay an amount of Rs.50,000/- as compensation to the complainant on account of mental agony and harassment caused to them and deficiency in service and unfair trade practice  on the part of the OP.

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

             The aforesaid order be complied with by the OPs jointly & severally within one month from the date of receipt of its certified copy failing which they shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) afore mentioned with interest @ 18% from the date of filing of the complaint till its realization, apart from paying litigation expenses.     

          The certified copies of this order be sent to the parties free of charge. The file be consigned.

Announced

28.10.2015                                     

                                                          Sd/-

(RAJAN DEWAN)

PRESIDENT

 

 

          Sd/-

(JASWINDER SINGH SIDHU)

MEMBER

 

 

          Sd/-

 

(PRITI MALHOTRA)

MEMBER

Om   

                                                                                                                    

 

 

                                                     

 

DISTRICT FORUM – II

CONSUMER COMPLAINT NO.450 OF 2014

PRESENT:   None   Dated the day of 28th October, 2015

O R D E R             Vide our detailed order of even date, recorded separately, the present complaint has been allowed against the Opposite Parties.           After compliance, file be consigned to record room.

 

(Priti Malhotra)	(Rajan Dewan)	(Jaswinder Singh Sidhu)
Member	President	Member