Chandigarh

DF-I

CC/134/2014

Mr. Bharat Bahl - Complainant(s)

Versus

M/s Ansal Lotus Melange Projects (P) Ltd. - Opp.Party(s)

Rajinder Singh Raj & Kirandeep Kaur

26 Oct 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

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Consumer Complaint No.	:	CC/134/2014
Date of Institution	:	26/02/2014
Date of Decision	:	26/10/2015

 

 

1.      Mr. Bharat Bahl

2.      Mrs. Madhu Bahl

          Both residents of Flat No.18, Ground Floor, Palm Grove, Sector 115, Mohali.

…..Complainants

V E R S U S

M/s Ansal Lotus Melange Projects (P) Ltd., SCO No.183-184, Sector 9-C, Madhya Marg, Chandigarh, through Ms. Nidhi Manchanda, Sr. Executive (Sales & Makg.).

……Opposite Party

 

 

 

QUORUM:	P.L.AHUJA	PRESIDENT
	MRS.SURJEET KAUR	MEMBER

               

                               

                                               

Argued by	:	Sh. Rajinder Singh Raj, Counsel for complainants
	:	Sh. Vaibhav Narang, Counsel for OP

 

PER P.L.AHUJA, PRESIDENT

1.         Mr. Bharat Bahl and Mrs. Madhu Bahl, complainants have filed this consumer complaint under Section 12 of the Consumer Protection Act, 1986, against M/s Ansal Lotus Melange Projects (P) Ltd., Opposite Party (hereinafter called the OP), alleging that the OP advertised in various newspapers (Annexure C-1) about the construction and allotment of luxurious residential flats in the proposed Palm Grove Apartments with assured possession within 24 months. The complainants have averred that Mr. Rajpal Singh Gill and Mrs. Harpinder Kaur Gill booked one flat and they were allotted Flat No.18 on the ground floor vide allotment letter dated 29.6.2009 (Annexure C-2), super built-up area of which was 1525 sq. ft. and the total consideration amount was Rs.33,75,000/-. 

                According to the complainants, since the OP was not completing the construction work as assured, the original allottees sold the aforesaid flat to them and the OP transferred the said flat in their name after charging a fee of Rs.55,855/- vide receipt (Annexure C-3).  The complainants have averred that the OP illegally charged a sum of Rs.2,92,131/- plus taxes from them on the pretext of increased area of the flat from 1525 sq. ft. to 1657 sq. ft. which did not exist at the spot and the same was paid by them. The OP also charged another amount of 60,000/- illegally for open car parking and in addition also illegally charged another sum of Rs.25,000/- as interest free maintenance and security deposit which were paid by them in good faith. The complainant has averred that the OP is also raising demand of payment of maintenance charges @ Rs.2/- per sq. ft. The complainants have pleaded that the OP is also not executing the sale deed in their favour. The complainants have contended that the possession of the flat had been handed over to them without proper infrastructure; the area is without proper roads and without lifts; there is no sufficient parking place and that the quality of construction is sub-standard; wooden flooring is decaying and there is water seepage. Even the promised amenities like club, tennis court, badminton and basket ball grounds, swimming pool, jogging track etc. have not been provided. The complainants served a legal notice dated 16.12.2013 upon the OP, but to no avail.  Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of the OP, the complainants have filed the instant complaint. 

2.         In its written reply, the OP has taken a number of preliminary objections including that the complainants are not consumer as they have purchased the unit in resale from one Harmeet Kaur (Mr. Rajpal Singh Gill and Mrs. Harpinder Kaur Gill?), who were the original allottees; that disputed questions of fact and law are involved in the present case which cannot be decided in summary proceedings; that the complainants have 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 original allottees, after duly satisfying themselves, as such they are estopped from filing the present complaint. The possession was offered to the previous allottees on 9.10.2012 and the complainants purchased the flat from the previous owner on 8.8.2013.  It has been further averred that clause 10 of the allotment agreement clearly contemplated that possession was likely to be completed within 24 months. The OP has pleaded that it is settled law that the terms and conditions of the allotment letter are binding on the parties.  It has been submitted that the complainants did not pay any amount for increased area and the entire amount of the flat was paid by the previous owners by 5.2.2013 without any protest or demur, therefore, the complainants cannot raise any question qua the increased area amount, car parking amount, interest free maintenance and security deposit amount.  It has been pleaded that as per clause 8 & 9 of the allotment letter, the allottees had given their unconditional consent to any variation, addition, alteration and modification in the plans. It has been pleaded that nothing was charged by the OP which was beyond the terms and conditions of the allotment letter. 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 parties led evidence in support of their contentions.
4.         During the pendency of the complaint, the complainants filed an application for appointment of a Local Commissioner for measurement of their flat, which was not opposed by the OP and initially Prof. Janbade Prafulla Tarachand, Assistant Professor of Chandigarh College of Architecture, Sector 12, Chandigarh was appointed as the Local Commissioner, but, subsequently Prof. Manoj Kumar, Assistant Professor of the said institute was appointed as the Local Commissioner and he submitted his report dated 16.12.2014 in accordance with which the super area of the apartment of the complainants was found to be 1611 sq. ft. (approx.).
5.         The OP filed an objection petition wherein it was alleged that the inspection report by the Local Commissioner is not acceptable to it.  It has been contended that Prof. Manoj Kumar had not informed the company officials particularly Mr. Bawinder Verma, Site Incharge who was present in company office with the Architect, Sh. Anil Tyagi.  It has been pleaded that Prof. Kumar came there and without intimating anybody from the company had visited the complainant’s flat for measurement.  The entry marked in the register dated 15.12.2014 is Annexure O-1.  It has been stated that the report filed by the Local Commissioner is merely presumptive because no detail of the area measured has been given; there is no summary of measurement of areas like area of the flat, width of walls, common area of lift well proportionally added to flat, sit outs/balconies, common area etc.  It has been averred that Prof. Manoj has missed measurement of a few areas due to lack of assistance of company architect. The OP has annexed a copy of the summary of super built up area duly measured and certified by the company architect after completion of construction as Annexure O-2. It has been contended that the measurements produced on record by the architect are not based on true and factual surmises.   The measurements were never taken in the presence of the architect of the company or other responsible official of the company and the same are incorrect. The MB books provided with the reply have also not been referred.
6.         The complainants did not file reply to the objection petition of the OP.
7.         On 17.6.2015, the OP filed an application for permission to place on record affidavit of Architect which has been opposed by the complainants. 
8.         We have appraised the entire evidence and written arguments of both sides and have also heard the learned counsel for the parties on the objection petition against the report of the local commissioner, application as well as the main complaint case.
9.         So far as the application filed by the OP for permission to place on record the affidavit of architect is concerned, it is significant to note that the application in question was filed by the OP only on 17.6.2015 when the case was at the stage of final arguments.  In this case, a local commissioner was appointed by this Forum vide order dated 9.9.2014 for measurement of the super area of the flat allotted to the complainants. The local commissioner submitted his report on 17.12.2014.  The OP was granted an opportunity to file the objections against the report of the local commissioner on 6.1.2015 and 28.1.2015 subject to payment of costs. Ultimately the objections on behalf of the OP against the report of the local commissioner were filed on 11.2.2015. No affidavit of the architect was submitted alongwith the objections.  Obviously, the application at the stage of final arguments has been filed on 17.6.2015 to fill up the lacunae in the evidence of the OP, if any. The proposed additional evidence was within the knowledge of the OP when it submitted its objections to the report of the local commissioner and had it exercised due diligence, the same could be produced earlier. The proceedings before this Forum are summary in nature and are to be decided within a specified time and the application for placing on record the affidavit of the architect is highly belated. The same is liable to be dismissed and dismissed as such.
10.         The first contention of the OP is that the allotment letter is a legally enforceable agreement and in case of any dispute the same is to be decided by the Civil Court and not by the Consumer Forum. It has also been contended that there is an arbitration clause in the agreement, in accordance with which, all the disputes are required to be adjudicated through Arbitrator and the jurisdiction of this Forum is barred. However, we feel that the above arguments are devoid of any substance. Even if the allotment letter is a legally enforceable agreement, the District Forum can still decide the disputes arising out of the contract as per the terms and conditions of the contract. 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 complainants to Civil Court.
11.         It has been contended by the complainants that the OP is not executing sale deed because the land is still not transferred in its name. However, it is pertinent that the complainants have not produced even a single letter which could show that they made a request to the OP for execution of the sale deed but the same was refused/not considered by the OP. Further, it is significant to note that the complainants have not sought the relief for a direction to the OP to execute the sale deed. Otherwise also, since the cost of the flat is mentioned as Rs.33,75,000/- as per the allotment letter dated 29.6.2009, this Forum has no jurisdiction to pass an order regarding the execution of the sale deed. Hence, we do not find any deficiency in service on the part of the OP on this count.
12.         The complainants have next contended that OP has made an illegal demand of Rs.60,000/- on account of car parking, which is 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/stilt car parking area. The complainants in this regard have 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, even in the schedule attached with the allotment letter, it is clearly mentioned that an amount of Rs.60,000/- was payable towards car parking. However, the complainants have failed to produce the copy of schedule attached with the allotment letter sent to the original allottees and the payment plan which draws an adverse inference against them. The ruling Nahalchand Laloochand Pvt. Ltd. Vs. Panchali Co-operative Housing Society Ltd. (supra) cited by the complainants 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. In the instant case, the complainants have failed to produce any documentary evidence to this effect that the OP was not entitled to get payment of Rs.60,000/- towards parking charges.  Hence, there is no force in this contention that the OP illegally charged the car parking charges of Rs.60,000/-.
13.         The next question, which falls for consideration, is, as to whether, the OP was right in recovering the maintenance charges @ Rs.2/- per sq. ft. 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 body corporate 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 previous allottees 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 complainants and the payment thereof does not amount to any unfair trade practice.

14.         The next contention of the complainants is that the flat has been handed over to them without proper infrastructure. According to the complainants, the area is without proper roads and without lifts, there is no sufficient parking place, the quality of construction work is sub-standard, wooden flooring is decaying, there is water seepage on the walls and the promised amenities like club, tennis court, badminton and basketball grounds, swimming pool etc. have not been provided by the OP.  The allegations of the complainants have been denied by the OP. It has been contended that there are proper roads, lifts and parking place and the quality of construction work is good.  It has been averred that the allottees before taking the actual physical possession had enough time to satisfy themselves regarding the quality, facilities and comfort in the project and after making payment without any protest or demur, their objections are meaningless. 
15.         We have given our thoughtful consideration to the above arguments. It is significant to note that the complainants purchased the flat in dispute in resale on 8.8.2013. At the time of purchasing the property, the complainants must have seen the condition of roads, lifts, parking place and the quality of construction work etc.  Therefore, the contention of the complainants, at this stage, that the flat was handed over to them without proper infrastructure and without proper amenities do not carry any force.  Apart from that, it is important to note that the complainants have not produced any documentary evidence to prove that the abovesaid facilities are not available/ operational. Pertinently, no request for appointing a local commissioner was made by the complainants specifically for making a report about the non-availability of the abovesaid facilities. So far as the contention of the complainants that they were not provided with all the facilities/amenities as provided in the brochure like the swimming pool, skate rink, central park (complete in all respect) and club house with all facilities is concerned, according to the OP, all these facilities are there and very much operational.  The OP has produced photographs at Annexure R-5 and R-6 showing that all the facilities regarding which complaint has been made by the complainants are existing. Furthermore, gym, table tennis, snooker table and club are operational and functional. Consequently, we do not find any deficiency in service on the part of the OP on this count. 
16.         The complainants have next contended that the OP at its own has increased the super built-up area of the flat from 1525 sq. ft. at the time of booking to 1657 sq. ft. It has been contended that the consent of the complainants was not obtained for increasing the area and the complainants have been burdened with another sum of Rs.2,92,131/- plus taxes.  The complainants have urged that the OP be directed to refund the amount charged for increasing the area.
17.         We have given our anxious consideration to the above contentions of the complainants. As per allotment letter (Annexure C-2) in the name of the previous allottees, the total super built-up 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 allottee were tentative. The said plans and specifications were accepted by the previous 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 previous allottees 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 previous allottees with open eyes and after understanding the terms and conditions of the same. Otherwise also, the complainants cannot challenge the terms and conditions of the allotment letter dated 29.6.2009 before this Forum in the year 2014 (26.2.2014) 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 complainants are 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.
18.         The next question that arises for determination is whether the super area of the apartment of the complainants has actually been increased from 1525 sq. ft. to 1657 sq. ft. or not? As already mentioned, Prof.  Manoj Kumar, Assistant Professor was appointed as a Local Commissioner for giving a report about the measurement of flat of the complainants. A perusal of the report of Prof.  Manoj Kumar, Local Commissioner reveals that the actual measurements were taken at site by him on 15.12.2014 and as per him the carpet area was 986 sq. ft. (approx.) and the super built-up area was 1611 sq. ft. (approx.).
19.         The above said report of the Local Commissioner has been disputed by the OP on the ground that Prof. Manoj Kumar after reaching the flat of the complainant had not informed the company officials particularly Mr. Bawinder Verma, Site Incharge who was present in company office with the Architect, Sh. Anil Tyagi.  It has been pleaded that Prof. Kumar came there and without intimating anybody from the company had visited the complainant’s flat for measurement. The entry marked in the register dated 15.12.2014 is Annexure O-1.  It has been stated that the report filed by the Local Commissioner is merely presumptive because no details of the area measured have been given; there is no summary of measurement of areas like area of the flat, width of walls, common area of lift well proportionally added to flat, sit outs/balconies, common area etc.  It has been averred that Prof. Manoj has missed measurement of a few areas due to lack of assistance of company architect. The OP has annexed a copy of the summary of super built up area duly measured and certified by the company architect after completion of construction as Annexure O-2. It has been contended that the measurements produced on record by the architect are not based on true and factual position and the same were never taken in the presence of the architect of the company or other responsible official of the company and the same are incorrect. The MB books provided with the reply have also not been referred. It has been urged that in view of the discrepancies in the report of Prof. Manoj Kumar, same is not a correct report and not acceptable. It has been contended by the OP that the report of Prof. Manoj Kumar, Local Commissioner is liable to be rejected.
20.         We have given our thoughtful consideration to the above arguments of the OP, but, we regret our inability to accept the same. It is worth nothing that alongwith the objections, the OP did not file any affidavit of any responsible officer of the company to show that the local commissioner visited the site without prior intimation to the OP.  Thus, we do not find any merit in this contention that no prior intimation of visit was given to the OP by Prof.  Manoj Kumar, Local Commissioner.  We may mention that in consumer complaint No.220 of 2013 titled as Vikramjit Singh & Anr. Vs. Ansals Lotus Melange Projects Pvt. Limited & Anr., one Architect was appointed as Local Commissioner in similar circumstances and during that visit the representative of the OP joined the proceedings but still a report unfavourable to the OP was given by the architect appointed in that case. It appears that in this case no representative of the OP participated in the proceedings of the Local Commissioner deliberately knowing well that the super area of the flat is not 1657 sq. ft. In fact, the OP wanted to create a ground for challenging the report of the Local Commissioner by not joining the proceedings being taken by the Local Commissioner.  The entries of the copy of register Annexure O-1 (Colly.) cannot be believed because the same were prepared by an employee of the OP who has not even filed his own affidavit. 
21.         As far as the contention of the OP that the measurements have not been taken properly by Prof. Manoj and he missed measurements of a few areas due to lack of assistance of company architect is concerned, it is significant that alongwith the report (Annexure O-2) prepared by the architect of the OP, no affidavit was filed.  Consequently, no reliance can be placed on the report produced by the OP. We do not find any reason to disbelieve the report prepared by Prof. Manoj Kumar, Local Commissioner. The objections against the report of the Local Commissioner are also not verified. The OP has also not produced the affidavit of any of its engineers about the authenticity of the super area calculated by it. The OP has also not produced the copies of the alleged occupation certificate and completion certificate of the unit issued by the competent authorities after due verification of the site measurement books, building plans etc. We are of the opinion that the measurement report of Prof. Manoj Kumar, 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 1611 sq. ft. instead of 1657.441 sq. ft. calculated by the architect of the OP.  We  do  not  find  any merit in the  objections  of  the  OP   and   the   same  are  dismissed.
22.   The contention of the OP that the payments in respect of increase in the super area were made by the original allottees and the possession was also taken by them and the complainants have not paid any amount for the increased area is not correct.  According to the pleadings of the complainants, the OP charged a sum of Rs.2,92,131/- plus taxes amounting to Rs.9,027/- illegally on the pretext of increased area of the flat from 1525 sq. ft. to 1657 sq. ft. which does not exist on the spot.  The OP has not produced any such documentary evidence that the possession of the flat was given to the original allottees Sh. Rajpal Singh Gill and Mrs. Harpinder Kaur Gill and that the payment of the increased area of the flat was also paid by them.  On the other hand, the copy of the receipt dated 8.8.2013 (Annexure C-3) itself shows that Sh. Bharat Bahl, complainant No.1 had paid an amount of Rs.4,99,224/- to the OP towards the basic and service tax apart from making payment of Rs.55,855/- towards transfer fee and service charges. Obviously, the complainants paid the amount of increased area of the flat believing the version of the OP that the area of the flat has been increased from 1525 sq. ft. to 1657 sq. ft.  Since, as per the report of the local commissioner, the super area of the apartment was found to be 1611 sq. ft. instead of 1657 sq. ft., therefore, the OP is bound to refund the amount charged beyond 1611 sq. ft. to the complainants. The demand of Rs.2,92,131/- plus taxes amounting to Rs.9,027/- representing the area as 1657 sq. ft. is illegal. Thus, the OP is guilty of unfair trade practice in recovering the aforesaid amount from the complainants.
23.         For the reasons recorded above, we find merit in the complaint and the same is partly allowed.  The OP is directed as under :-

1. To recalculate the amount of super area by treating the same to be 1611 Sq. ft. instead of 1657 sq. ft. and refund the excess amount charged from the complainants.

ii)     To pay an amount of Rs.30,000/- 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 OP.

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

24.         This order be complied with by the OP within one month from the date of receipt of its certified copy failing which it shall make the payment of the amount mentioned at Sr.No.(ii) above with interest @ 9% from the date of filing of the present complaint till realization.
25.         The certified copies of this order be sent to the parties free of charge. The file be consigned.

	Sd/-	Sd/-
26/10/2015	[Surjeet Kaur]	[P. L. Ahuja]
hg	Member	President