Chandigarh

DF-I

CC/717/2013

1. Ajay Sharma - Complainant(s)

Versus

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

20 Oct 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

========

 

                                                                           

Consumer Complaint No.	:	CC/717/2013
Date of Institution	:	25/11/2013
Date of Decision	:	20/10/2015

 

1.      Ajay Sharma

2.      Neelam Sharma, both residents of H.No.1069, First Floor, Phase 5, Mohali.

…..Complainants

V E R S U S

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

 

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. Ajay Sharma and Ms. Neelam Sharma, complainants have filed this consumer complaint under Section 12 of the Consumer Protection Act, 1986, against M/s Ansal Lotus Melange Projects Pvt. Ltd., Opposite Party (hereinafter called the OP), alleging that the OP advertised in various newspapers (Annexure C-1) about the construction of residential apartments in the proposed Orchard County Luxury Apartments with assured possession within 24 months. The complainants booked one apartment in the proposed apartments on 13.6.2011 and they were allotted Flat No.304 on 3^rd floor of Tower No.7 in Orchard County – 1, Sector 115, Mohali on the Kharar-Landran Road having a super built-up area of 1324 sq.ft. @ Rs.2,350/- per. Sq. ft. and PL Charges @ Rs.100/- per sq. ft. total amounting to Rs.32,43,800/- vide allotment letter dated 14.7.2011 (Annexure C-2).

                According to the complainants, the OP handed over possession to them vide possession letter dated 17.9.2012 (Annexure C-3). The OP at the same time intimated the complainants that there was an increase in the super built-up area by 76 sq. ft. for which an amount of Rs.1,82,200/- was demanded, which was paid by them in good faith. In addition, the OP also demanded another amount of Rs.1,00,000/- from the complainants as parking charges. 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; there is water seepage on the walls and water logging in the basement. 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 21.9.2013 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 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 11 of the allotment letter clearly contemplated that possession would be delivered within a reasonable time and no promised time line had been given. 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 had taken the actual physical possession of the unit purchased by them after satisfying themselves regarding the quality, facilities and comfort in the project without any protest or demur and had made the payment. It has been pleaded that as per clause 9 & 10 of the allotment letter, 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 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.         In their rejoinder, the complainants have controverted the stand of the OP and reiterated their own.  It has been pleaded that increase of a huge area of 76 sq. ft. is possible only if the drawings are changed.
4.         The parties led evidence in support of their contentions.
5.         During the pendency of the complaint, the complainants filed an application for appointment of a Local Commissioner for measurement of their flat. After hearing arguments of both the sides, that application was allowed vide order dated 4.6.2014.  Sh. Kamaldeep Singh, Architect filed a report on 14.10.2014 in accordance with which the super area of the apartment of the complainants was found to be 1385.46 sq. ft. (127.713 sq.m).
6.         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 Sh. Kamaldeep Singh did not visit the site on 24^th August and 28^th August for the purpose of taking measurements and in fact he has visited the site on 29^th August as per entry register.  It has been contended that the date informed to the OP was 24.8.2014, which was Sunday, and the architect of the company could not come due to unavoidable circumstances from Delhi. Sh. Kamaldeep Singh, Architect assured that he would intimate about his visit at the site.  The entry marked on register for dated 24.8.2014 and 28.8.2014 is Annexure O-1 (colly.).  It has been contended that it was decided between the company official and Sh. Kamaldeep Singh that he would visit on some other day with prior intimation to the company but as per his version, he again visited on 28.8.2014 to take the measurements without any prior intimation. 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. It has been alleged that the area of the flat has been calculated without including the width of the walls and the super area has been wrongly calculated. The MB books provided with the reply have also not been referred.  According to the OP, there are following variations in the area measured by the Local Commissioner and as per the architect of the company :-

SUMMARY
Built Up area of the Flat (Flat No.10 Ground Floor)	As per LC appointed by Court	As per Architect of the Company.
Area of the flat	95.918 Sq.m	97.06.286 Sq.m
Common Area of Balconies & Sunshades	9.06 Sq.m.	9.06 Sq.m
Total Area	106.12 Sq.m	104.978 Sq.m
Common Area Co-efficient 22.61%	23.735 Sq.m	24.00 Sq.m
SUPER AREA	128.713 Sq.m	130.12 Sq.m
	1385.46 Sq.m	1400.61 Sq.m

 

It is pertinent that in the above summary, the OP has wrongly mentioned the super area as per Local Commissioner as 1385.46 sq.m and as per architect of the company as 1400.61 sq.m whereas the same should have been sq. ft.

7.         The objection petition has been contested by the complainants. It has been stated that the OP was intimated that local commissioner will visit the site on 24.8.2014 but the architect of the OP was unable to be present. It has been averred that the OP was in regular touch with the local commissioner but the OP intentionally and willfully did not remain present on the site. The record produced by the OP is forged and fabricated. It has been averred that the local commissioner has included all the areas which could come within the definition of super built-up area as mentioned in the agreement. All the areas including common areas and external services are included in the report. 
8.         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. 
9.         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.
10.         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 4.6.2014 for measurement of the super area of the flat allotted to the complainants. The local commissioner submitted his report on 14.10.2014.  The OP was granted an opportunity to file the objections against the report of the local commissioner on 3.11.2014, 26.11.2014, 17.12.2014, 6.1.2015 and 28.1.2015 and the last three adjournments were granted 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.
11.         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.
12.         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.32,43,800/- as per the allotment letter dated 29.6.2011, 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.
13.         The complainants have next contended that 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 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 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, even in the schedule attached with the allotment letter, it is clearly mentioned that an amount of Rs.1,00,000/- was payable towards car parking. However, the complainants have failed to produce the copy of schedule attached with the allotment letter 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. The complainants did not raise any protest at the time of making payment of Rs.1,00,000/- towards parking charges.  Hence, at this stage it cannot be contended by the complainants that the OP is not entitled to the car parking charges of Rs.1,00,000/-.
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 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. 
15.         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 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-4 and R-5 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 1324 sq. ft. at the time of booking to 1400 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.1,82,200/-.  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 the total super built-up area of the apartment was 1324 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 allottees/ complainants 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 29.6.2011 before this Forum in the year 2013 (25.11.2013) 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 1324 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 1324 sq. ft. to 1400 sq. ft. or not? As already mentioned, Sh. Kamaldeep Singh, Architect was appointed as a Local Commissioner for giving a report about the measurement of flat of the complainants. A perusal of the report of Sh. Kamaldeep Singh, Architect reveals that the actual measurements were taken at site by him on 24^th & 28^th August, 2014 and the drawings and details were provided by the OP.  The OP was informed well in advance, but, no one from its side was present at the time of his visit to the site.  The copy of the sanctioned plan provided by the OP is unreadable. The measurement report shows that the Local Commissioner measured area of flat and area of balconies and sunshades. He has come to the conclusion after all these measurements that super area of the flat in question is 128.713 sq.m/1385.46 sq.ft.
19.         The above said report of the Local Commissioner has been disputed by the OP on the ground that Sh. Kamaldeep Singh did not visit on 24^th and 28^th August as per the entry marked on register Annexure O-1 (colly.).  It has been urged that in fact Sh. Kamaldeep Singh visited the site on 29^th August.  He had informed the date to the OP as 24.8.2014, but, since it was Sunday and the architect of the company could not come due to unavoidable circumstances from Delhi, Sh. Kamaldeep Singh assured that he would give prior intimation about his visit at the site. However, as per Sh. Kamaldeep Singh, he again visited the site on 28.8.2014 to take the measurements without any prior intimation to the OP.  It has also been urged on behalf of the OP that the measurements were not taken in front of the architect of the company or any other responsible official of the company.  It has also been averred that the entire saleable area has not been measured and the few areas have been missed advertently. It has also been argued that the area of the flat has been calculated without including the width of the walls and the super area has been wrongly calculated. Further, the MB books provided with the reply have not been referred. It has been urged that in view of the discrepancies in the report of Sh. Kamaldeep Singh, same is not a correct report and not acceptable. The correct report based on correct measurements alongwith lay out duly approved by the architect has been annexed as Annexure O-3 by OP.  It has been contended by the OP that the report of Sh. Kamaldeep Singh, 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. The circumstances on record show that the conduct of the OP after the filing of the application for the appointment of Local Commissioner by the complainants has not been above board. The application for appointment of Local Commissioner was opposed by the OP. Though the OP had every right to oppose the application for appointment of Local Commissioner, yet after the same was allowed on 4.6.2014, both the parties were given an opportunity to suggest the names of the persons for appointment as Local Commissioner, but, the OP did not furnish any name either on 11.6.2014 or on 26.6.2014 or on 10.7.2014. Thus, we were left with no alternative but to appoint one of the persons suggested by the complainants as a Local Commissioner. Even after the order dated 10.7.2014 passed by this Forum appointing Sh. Kamaldeep Singh, Architect as Local Commissioner, no objection against his appointment was filed.  The OP did not file any application prior to the filing of objections on 11.2.2015 that the Local Commissioner was not accommodating it and he had visited the site on 29.8.2014 without prior intimation to the OP. To cap it all, the report of the Local Commissioner was filed on 14.10.2014 and the case was listed for filing of the objections on behalf of the parties on 3.11.2014. However, on that date, none was present for the OP and a court notice was issued to the learned counsel for the OP for filing objections on or before 26.11.2014. On 26.11.2014 counsel for the OP appeared but the objections were not filed and the case was adjourned to 17.12.2014.  Thereafter, the case was adjourned to 6.1.2015 and 28.1.2015, but, still the objections were not filed and finally the case was adjourned to 11.2.2015 on which date the OP ultimately filed the objections.  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.  There is no such application in writing moved to the Local Commissioner that the architect of the company could not reach the site on 24^th August being Sunday. Even if it is assumed that the architect of the company could not reach the site on 24^th August, none prevented the OP from sending any other responsible person in whose presence the measurements could be taken. The objections of the OP against the report of the Local Commissioner are not supported by any affidavit. The OP has not filed any affidavit of a responsible officer of the company 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 Sh. Kamaldeep Singh, Architect.  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 1400 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 and the area of the flat has been calculated without indicating the width of the walls is concerned, it is significant that the report Annexure O-2 prepared by the architect of the OP alongwith lay out, copy of which is Annexure O-3, 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 measurement report and the lay out prepared by Sh. Kamaldeep Singh, Architect, Local Commissioner. The objections against the report of the Local Commissioner are also not verified. The copy of the measurement book or summary of areas Annexure R-2 is not signed or verified by any engineer of the OP.  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 Sh. Kamaldeep Singh, 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 complainants was found to be 1385.46 sq. ft. instead of 1400.61 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.   It  is  important  to  note  that the complainants in their complaint have made a request to refund the sum of Rs.1,82,200/- charged illegally on the pretext of enhanced super built area.   However, we feel that   since the local commissioner has found that the super built area is 1385.46 sq. ft. instead of 1400.61 sq. ft. calculated by the architect of the OP, therefore, the OP is bound to refund the amount relating to 15 sq. ft. to the complainants.  The demand of the OP of an amount of Rs.1,82,200/- representing the super area as 1400 sq. ft. is illegal.  The OP is guilty of unfair trade practice in recovering the amount of Rs.1,82,200/- from the complainants instead of recovering the amount of super area of 1385.46 sq.ft.  
22.         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 1385.46 Sq. ft. instead of 1400.61 sq. ft. and refund the excess amount charged from the complainant.

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.

23.         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.
24.         The certified copies of this order be sent to the parties free of charge. The file be consigned.

	Sd/-	Sd/-
20/10/2015	[Surjeet Kaur]	[P. L. Ahuja]
hg	Member	President