Chandigarh

DF-II

CC/537/2013

Niraj Kumar Sharma - Complainant(s)

Versus

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

R.S.Raj,Adv

29 May 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

 

Consumer Complaint No.	:	537/2013
Date of Institution	:	25.11.2013
Date of Decision	:	29/05/2015

 

                                                

                                     

 

Niraj Kumar Sharma son of Sh.T.D.Sharma r/o H.No.E-206, Ivory Towers, Sector 70, 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.

 

BEFORE:  SHRI RAJAN DEWAN, PRESIDENT

SHRI JASWINDER SINGH SIDHU, MEMBER

SMT.PRITI MALHOTRA, MEMBER

 

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

                        Sh.Vaibhav Narang, Advocate for the Opposite Party

 

PER RAJAN DEWAN, PRESIDENT

1.           In brief, the case of the complainant is that the OP advertised in various newspapers (Annexure C-1) about the construction of residential apartments in the proposed Orchard Country Luxury Apartments with assured possession within 24 months. The complainant was allotted Flat No.403 on the Fourth Floor, Tower No.7, Sector 115, Mohali having a super built-up area of 1292 sq. ft. @ Rs.2450/- per sq. ft. and PL charges @ Rs.100/- per sq. ft., total amounting to Rs.32,94,600/- vide allotment letter dated 09.02.2008, Annexure C-2. It has been averred that the OP failed to complete the construction in time and vide letter dated 31.01.2013, the complainant was handed over the possession.  In the meanwhile the OP intimated the complainant that the final super built up area of the flat is 1372 sq. ft. A demand of Rs.2,10,304/- including Rs.6304/- as tax was made from the complainant for the alleged enhanced area of 80 sq. ft., which was paid by him in good faith.  In addition, the OP also illegally charged a sum of Rs.1,00,000/- as parking charges. It has been averred that the OP is also not executing the sale deed in his favour. It has been contended by the complainant that the possession of the flat had been handed over to him 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.  The complainant served a legal notice dated 21.09.2013 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 complainant has filed the instant complaint. 
2.           In its written reply, the OP has taken a number of preliminary objections including that the 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 himself, as such he is estopped from filing the present complaint.  It has been further averred that Clause 11 of the allotment agreement contemplated that possession was likely to be completed within a reasonable period 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. Moreover, offer of possession had been given on 24.03.2012.  It has been pleaded that as per Clause 9 & 10 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 9 and 10 of the allotment agreement, the complainant had given his  unconditional consent to any variation and modification in the area. It has been denied that the Opposite Party has charged an amount for car parking charges which they were not entitled to. 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.             In his rejoinder, the complainant has controverted the stand of the OP and reiterated his own. 
4.            The parties led evidence in support of their contentions.
5.           During the pendency of the complaint, both the parties have submitted the names for the appointment of the local Commissioner but there was no consensus and it was stated by the Counsel for the parties that they had no objection if the Local Commissioner was appointed from the College of Architecture, UT, Chandigarh. Vide order dated 29.08.2014, Director/Principal  College of Architecture, Sector 12, Chandigarh was requested to appoint a member of its faculty duly qualified as Local Commissioner for measurement of actual and super built up area of the flat of the complainant.  Accordingly, Prof. Manoj Kumar, Assistant Professor, Chandigarh College of Architecture, Sector 12, Chandigarh appointed by the Principal, Chandigarh College of Architecture, Chandigarh who submitted his report dated 30.10.2014, according to which the carpet area and the super built up area of the flat of the complainant was found to be 850 sq. ft. (approx.) and  1348 sq. ft.  (approx.) respectively.
6.           The report of the Local Commissioner has been opposed by the Opposite Party by filing objection petition.
7.           We have heard the Counsel for the parties and gone through the entire evidence alongwith written arguments of both sides. 
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 complainant to Civil Court.
9.         The contention of the complainant is that the OP has made an illegal demand of Rs.1,00,000/- 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 argued 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 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 submission because as per case of the OP, the schedule attached with the allotment letter shows that an amount of Rs.1,00,000/- was to be paid by the complainant towards car parking. It is also stated that the scheduled has been duly accepted by the complainant. However, the complainant has failed to produce the copy of schedule attached with the allotment letter which draws an adverse inference against him.  The complainant cannot wriggle out of the amount mentioned in the allotment letter duly signed by him. The case-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.1,00,000/-.
10.           The next submission of the complainant is that the flat has been handed over to him without proper infrastructure. According to the complainant, 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 complainant 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 complainant before taking the actual physical possession had enough time to satisfy himself regarding the quality, facilities and comfort in the project and after making payment without any protest or demur, his objections are meaningless. 
11.           We have given our thoughtful consideration to the above arguments. It is important to note that the complainant has 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 made by the complainant specifically for making a report about the non-availability of the above said facilities. So far as the contention of the complainant that he was 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 Annexures R-5 and  R-6 showing that all the facilities regarding which complaint has been made by the complainant 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.
12.         It has also been contended by the complainant that the OP is also not executing sale deed because the land is still not transferred in its name. However, it is pertinent that the complainant has not produced even a single letter which could show that he ever 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 complainant has 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.32,94,600/- as per the allotment letter dated 09.02.2008, this Forum has no jurisdiction to pass an order regarding the execution of the sale deed.
13.            The next contention of the complainant is that the OP has raised the Rs.2,04,000/- and tax Rs.6,304/-, total Rs.2,10,304/- by increasing the super area of the flat from 1292 sq. ft. at the time of booking to 1372 sq. ft. at the time of offering possession without his consent. The complainant has urged that the OP be directed to refund the amount charged for increasing the area.
14.         We have given our thoughtful consideration to the above submissions of the complainant. As per allotment letter the total super area of the apartment was 1292 sq. ft. approximately. Clause 9 and 10 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 allottee 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 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 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 1292 sq. ft.
15.           The next question that arises for determination is as to whether the super area of the apartment of the complainant has actually been increased from 1292 sq. ft. to 1372 sq. ft. or not? As already mentioned, Prof. Manoj Kumar, Architect was appointed as a Local Commissioner for giving a report about the measurement of flat of the complainant. A perusal of the report of Prof. Manoj Kumar, Architect reveals that the actual measurements were taken at site by him on 13.10.2014. The OP was informed well in advance but no one from its side was present at the time of his visit to the site.    He has specifically stated in his report that there is no architectural terminology as super built up area and even as per IS3861:2002 there is no such nomenclature available for computing the measurement of the same. He has further submitted in his report that for practical/commercial purposes, developers have coined the terminology which may include common area, vertical circulation, pergola, mumty and lift machine room, balconies, projection of cupboards and over head water tank. According to the report of the local commissioner, the super  built area of the flat in question is 1348 sq. ft. (approx.) and the carpet area is 850 sq.ft..
16.                  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 did not inform the company officials particularly Mr.Balwinder Verma, Site Incharge who was present in the company office with Architect Sh.Anil Tyagi.  It has been argued that the purpose of visit was mentioned as personal measurement of flat as per the entry register (Annexure O-1). It has been argued that no detail of area measured has been given.  It has further been argued that there is no summary of measurement of areas like. The area of the flat, width of walls, common area of lift well proportionally added to flat, sit outs/balcoines, common area etc. It has further been argued that in view of the discrepancies in the report of Prof. Manoj Kumar, the same is not a correct report and not acceptable. The copy of the summary of super built up area duly measured and certified by the Company Architect after completion of the construction has been annexed as Annexure O-2 by OP.  It has further been argued by the OP that the report of Prof. Manoj Kumar, Local Commissioner is liable to be rejected.
17.        We have given our thoughtful consideration to the above arguments of the OP but we regret our inability to accept the same.  Even after appointment of Prof. Manoj Kumar, Architect as Local Commissioner, the OP did not file any application prior to the filing of objections that the Local Commissioner was not accommodating it and he had visited the site on 13.10.2014 without prior intimation to the OP. To cap it all, the report of the Local Commissioner was received on 21.11.2014 and thereafter the case was listed for filing of the objections on behalf of the parties on 17.12.2014. However, on that date, objections were not stated to be ready and the case was adjourned to 12.01.2015. On 12.01.2015, objections were not again ready and the same were filed only on 23.01.2015. The OP has been delaying the process of report of the Local Commissioner and objections on one ground or the other knowing well that the proceedings before this Forum are summary in nature.   The Local Commissioner has specifically stated that he informed the parties to remain present at the spot for physical verification of the dimensions on 13.10.2014 at 10.00 a.m.    He further stated in his report that the complainant had responded but the OP did not turn up.  Moreover, the objections of the OP against the report of the Local Commissioner are neither verified nor supported by any affidavit to show that the Local Commissioner visited the site without prior intimation to him. 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, Architect.  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 1372 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 cannot be believed because the same were prepared by an employee of the OP who has not even filed his own affidavit. 
18.         As far as the contention of the OP that the report filed by the Local Commissioner is merely presumptive because no detail of area measured has been given  and there is no summary of measures of area etc. is concerned, it is significant that the report Annexure O-2 prepared by the architect of the OP, is not supported even by the affidavit of Mr. Anil Tyagi, Architect of the OP.  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, Architect, 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 report of Prof. Manoj Kumar, Architect, 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 complainant was found to be 1348  sq. ft. instead of 1372 sq. ft. calculated by the architect of the OP.  In this view of the matter, the demand of the OP of an amount of Rs.2,04,000/- alongwith tax of Rs.6,304/- representing the super area as 1372  sq. ft. is illegal.  Since the complainant has already made the payment of Rs.2,10,304/-, the OP is required to re-calculate the amount after treating the super area to be 1348 sq. ft. instead of 1372 sq. ft. and refund the excess amount charged from the complainant.
19.                   For the reasons recorded above, we find merit in the complaint and the same is partly allowed.  The OP is directed as under :-

i)       To recalculate the amount of super area by treating the same to be 1348 Sq. ft. instead of 1372 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 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.

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

Announced

29/05/2015

Sd/-

(RAJAN DEWAN)

PRESIDENT

 

Sd/-

(JASWINDER SINGH SIDHU)

MEMBER

 

Sd/-

(PRITI MALHOTRA)

MEMBER