Chandigarh

DF-II

CC/567/2013

Sahil Kapoor - Complainant(s)

Versus

M/s Ansal Lotus Melange Projects Pvt Limited - Opp.Party(s)

07 Aug 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

 

(I)

 

Consumer Complaint No.	:	567/2013
Date of Institution	:	10.12.2013
Date of Decision	:	07.08.2015

 

 

 

                                                

1.       Mr.Sahil Kapoor

 

2.       Mrs.Kranti Kapoor wife of Mr.Sahil Kapoor, both residents of House No.252, United Cooperative Society, Sector 68, Mohali.

                                      ...  Complainants.

Versus

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

…. Opposite Party

 

 

 

(II)

 

Consumer Complaint No.	:	104/2014
Date of Institution	:	26.02.2014
Date of Decision	:	07.08.2015

 

 

 

                                                

1.       Col.Arvinder Singh Chahal

 

2.       Mrs.Raminder Jit Kaur Chahal, both residents of H.No.28, Defence Officers Enclave, Opp. ITBP Complex, Bibiwala Road, Bathinda (Punjab).

                                      ...  Complainants.

Versus

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

…. Opposite Party

 

 

(III)

 

Consumer Complaint No.	:	105/2014
Date of Institution	:	26.02.2014
Date of Decision	:	07.08.2015

 

 

 

                                                

Mr.Sudhir Rana r/o Flat No.29, Second Floor, Palm Grove Apartments, Sector 115, Mohali.

                                      ...  Complainant.

Versus

M/s Ansal Lotus Melange Projects Pvt. Ltd., SCO No.183-184, Sector 9-C, Madhya Marg, Chandigarh, through Mr.Sandeep Kumar, G.M.Project.

 

…. Opposite Party

 

(IV)

 

Consumer Complaint No.	:	122/2014
Date of Institution	:	05.03.2014
Date of Decision	:	07.08.2015

 

 

 

                                                

1.       Mr.Arvinder Singh Bhatia

 

2.       Mrs.Punam Bhatia, both residents of Flat No.11, 1^st Floor, Palm Grove Apartments, Sector 115, Mohali.

                                      ...  Complainants.

Versus

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 and Mktg.).

…. Opposite Party

 

 

 

BEFORE:  SHRI RAJAN DEWAN, PRESIDENT

SHRI JASWINDER SINGH SIDHU, MEMBER

SMT.PRITI MALHOTRA, MEMBER

 

Argued by: Sh.Rajinder Singh Raj, Advocate for the complainants

                        Sh.Vaibhav Narang, Advocate for the Opposite Party

 

PER RAJAN DEWAN, PRESIDENT

1.           By this order we propose to dispose of the above mentioned four connected consumer complaints in which common questions of law and fact are involved.
2.           The facts are gathered from Consumer Complaint No.567 of 2013-Mr.Sahil Kapoor Vs. M/s Ansal Lotus Melange Projects Pvt. Ltd.
3.            In brief the case of the complainants is that the OP advertised in various newspapers (Annexure C-1) about the construction of residential apartments in the proposed Palm Grove Luxury Apartments with assured possession within 24 months.  The complainants applied for an apartment in the proposed group housing and they were allotted Unit No.25 on the Top Floor, Sector 115, Mohali having a super built-up area of 1525 sq. ft. @ Rs.2098.36 per sq. ft. total amounting to Rs.32,00,000/- vide allotment letter dated 14.07.2009.

                   According to the complainants, the OP failed to complete the construction in time despite various visits, letters and emails sent by them.  In the meantime, the OP intimated the complainants that the area of the flat is 1678 sq. ft. A demand of Rs.3,21,049/- was made from the complainants for the alleged enhanced area of 153 sq. ft., which was paid by them in good faith. In addition, the OP also illegally charged a sum of Rs.60,000/- as open car parking charges and Rs.25,000/- as interest free maintenance and security deposit. It has been pleaded that the OP is also not executing the sale deed in their favour. It has been contended by the complainants 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. Even the promised amenities like club, tennis court, badminton and basket ball grounds, swimming pool, jogging track etc. have not been provided.  It has been averred that the OP is also demanding maintenance charges @ Rs.2/- per sq. ft. in favour of M/s Star Facilities Management Ltd., a sister concern. The complainants served a legal notice dated 14.10.2013 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. 

4.         In its written reply, the OP has 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 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 complainants, after duly satisfying themselves, as such they are estopped from filing the present complaint.  It has been further averred that clause 10 of the allotment agreement contemplated that possession was likely to be completed within 24 months and no definite period was mentioned. It has been pleaded that the allotment agreement is the agreement entered between the parties and its terms and conditions are binding upon the parties. It has been submitted that the offer of possession had been given on 12.07.2012 and there was a minor delay which can occur in construction.  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 complainants had given their 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.
5.           The complainant filed rejoinder to the written reply of the Opposite Party controverting its stand and reiterating his own.
6.           The parties led evidence in support of their contentions.
7.           We have heard the Counsel for the parties and gone through the entire evidence alongwith written arguments of the Opposite Party. 
8.             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 complainants to Civil Court.
9.         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 he complainants have not produced even a single letter which could show that ever 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.32,00,000/- as per the allotment letter dated 14.07.2009, this Forum has no jurisdiction to pass an order regarding the execution of the sale deed.
10.           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, the summary of dues attached with the allotment letter shows that an amount of Rs.60,000/- was to be paid by the complainants towards open car parking space. It is also stated that the said summary of dues is duly signed by the complainants. However, the complainants have failed to produce the copy of summary of dues attached with the allotment letter which draws an adverse inference against them. The copy of payment plan Annexure R-1 clearly shows that an amount of Rs.60,000/- was to be paid towards car parking on completion of 1^st floor roof slab.  The complainants cannot wriggle out of the amount mentioned in the allotment letter duly signed by 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. Hence, at this stage it cannot be contended by the complainants that the OP is not entitled to the car parking charges of Rs.60,000/-.
11.         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 complainants? 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 complainants 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.

12.         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 complainants 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. 
13.         We have given our thoughtful consideration to the above arguments. It is important to note that the complainants have not produced any documentary evidence to prove that the above said facilities are not available/ operational.  Pertinently, no request for appointing a Local Commissioner was specifically made by the complainants for making a report about the non-availability of the above said 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. 
14.         The complainants have 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 complainants was not obtained for increasing the area and the complainants have been burdened with another sum of Rs.3,21,049/-. The complainants have urged that the OP be directed to refund the amount charged for increasing the area.
15.         We have given our anxious consideration to the above contentions of the complainants. As per allotment letter Annexure C-2 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 complainants 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 complainants 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 14.07.2009 before this Forum in the year 2013 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.
16.         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 1678 sq. ft. or not?  
17.           The complainants 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 for appointment of the Local Commissioner, which after due consideration was allowed by this Forum vide order dated 29.08.2014 with a direction to the Local Commissioner to measure the ‘actual’ and ‘super built up area’ of the flat in question.  The report dated 07.05.2015 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 1570 sq. ft. (approx.).
18.           However, the OP in order to rebut the report of the Local Commissioner has placed on record its objections supported by summary of different measurements as Annexure O-2 alongwith the affidavit of Sh.Anil Tyagi, Architect.
19.            After giving our thoughtful consideration to the objections of the OP, affidavit of Sh.Anil Tyagi  as well as the summary(Annexure O-2) filed by the OP, we are of the considered opinion that the objections of the OP sound hollow  and Annexures O-1 and O-2 are self-serving documents. Unfortunately, the OP in its objections has mentioned the dimensions of the flat in question in square ft.  whereas while relying upon the summary as well as affidavit of Sh.Anil Tyagi, Architect, on its pay roll, is bereft of any  mention of the units whether such measurements are in sq. ft., sq. mtr. or sq. yards. We have never come across a report of the professional architect who fails to mention the dimensions in proper manner while tendering such a vital document before any court of law. There is also no mention about the experience of Sh.Anil Tyagi as to since how long he has been in the profession of architecture after completion of his degree, if any.  Further, 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 1678 sq. ft. as claimed.  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 cannot be believed because the same were prepared by an employee of the OP who has not even filed his own affidavit.  Therefore, the objections of the OP against the report of the Local Commissioner are outrightly rejected being devoid of any merit, logic or common sense.  We are of the opinion that the report of the 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 1570 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.3,21,049/- representing the super area as 1678 sq. ft. is illegal.  Since the complainants have already made the payment of Rs.3,21,049/-, the OP is required to re-calculate the amount after treating the super area to be 1570 sq. ft. instead of 1678 sq. ft. and refund the excess amount charged from the complainants.
20.           As regards the plea of the complainants regarding the reimbursement of Rs.1,66,712/- paid as interest on pre-EMI to the HDFC in C.C. 122/2014- Mr.Arvinder Singh Bhatia and Anr. Vs. M/s Ansal Lotus Melange Projects Pvt. Ltd. is concerned, the same is inter se dispute between the complainants and the Bank. Moreover, the Bank has not been impleaded as a party to the complaint.  Besides this, the complainants have also not been able to place on record any document to show that the payment of interest of Pre-EMI was to be paid by the OP.  Similarly, in this case, the complainants have also claimed a sum of Rs.1,87,000/- on account of rent paid by them due to late delivery of the possession of the flat in question. However, the complainants have not able to draw our attention to any clause of the allotment letter to show that in case of non-delivery of the possession in time, the OP is liable to pay the rent to them and as such the plea of the complainants regarding refund of Rs.1,87,000/-is also rejected accordingly.
21.         For the reasons recorded above, we find merit in the present complaints and the same are partly allowed as under:-. 
22.           In C.C.No.567 of 2014-Mr.Sahil Kapoor and Anr. Vs. M/s Ansal Lotus Melange Projects Pvt. Ltd., the OP is directed as under:-

i)      To recalculate the amount of super area by treating the same to be 1570 Sq. ft. instead of 1678 sq. ft. and refund the excess amount charged from the complainants.

ii)     To pay an amount of Rs.50,000/- 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.

23. In C.C.No.104 of 2014-Col.Arvinder Singh Chahal and Anr. Vs. M/s Ansal Lotus Melange Projects Pvt. Ltd., the OP is directed as under:-

i)      To recalculate the amount of super area by treating the same to be 1570 Sq. ft. instead of 1678 sq. ft. and refund the excess amount charged from the complainants.

ii)     To pay an amount of Rs.50,000/- 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. In C.C.No.105 of 2014-Mr.Sudhir Rana Vs. M/s Ansal Lotus Melange Projects Pvt. Ltd., the OP is directed as under:-

i)      To recalculate the amount of super area by treating the same to be 1611 Sq. ft. instead of 1648 sq. ft. and refund the excess amount charged from the complainant.

ii)     To pay an amount of Rs.50,000/- as compensation to the complainants on account of mental agony and harassment caused to him 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.

25. In C.C.No.122 of 2014-Mr.Arvinder Singh Bhatia and Anr. Vs. M/s Ansal Lotus Melange Projects Pvt. Ltd., the OP is directed as under:-

i)      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.50,000/- 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.

26.         The aforesaid 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 amounts mentioned at Sr.No.(i) & (ii) afore mentioned with interest @ 9% from the date of filing of the complaint(s) till realization.
27.         The certified copies of this order be sent to the parties free of charge. The file be consigned.

Announced                                                                                        Sd/-

07.08.2015                                                                       (RAJAN DEWAN)

PRESIDENT

Sd/-

(JASWINDER SINGH SIDHU)

MEMBER

Sd/-

(PRITI MALHOTRA)

MEMBER