Chandigarh

DF-I

CC/786/2013

Harish Kochar - Complainant(s)

Versus

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

15 Apr 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

========

                                     

 

Consumer Complaint No.	:	CC/786/2013
Date of Institution	:	30/12/2013
Date of Decision	:	15/04/2015

 

 

Harish Kochar, resident of Flat No.2 SF, Palm Grove, Sector 115, Mohali.

…..Complainant

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 Ms. Nidhi Manchanda, Sr. Executive (Sales & Mktg.).

……Opposite Party

 

 

 

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

                                               

                                                                       

For complainant	:	Sh. Rajinder Singh Raj, Advocate
For OP	:	Sh. Vaibhav Narang, Advocate

 

                       

PER P.L.AHUJA, PRESIDENT

1.         Sh. Harish Kochar, complainant has 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) the construction of residential apartments in the proposed Palm Grove Luxury Apartments with assured possession within 24 months.  The complainant purchased an apartment in the proposed group housing from the original allottee Mr. Anuj Gupta who was allotted Flat No.2 on the second floor, Palm Grove, Sector 115, Mohali having a super built-up area of 1525 sq. ft. @ Rs.2,000.00 per sq. ft. total amounting to Rs.33,50,000/- vide allotment letter dated 6.7.2009 (Annexure C-2).

                According to the complainant, the OP failed to complete the construction in time despite various visits, letters and emails sent by him.  In the meanwhile, the OP intimated that the area of the flat was 1657 sq. ft. and a demand of Rs.2,64,000/- alongwith Rs.8,158/- as tax total amounting to Rs.2,72,158/- was made from the complainant for the alleged enhanced area of 132 sq. ft., which was paid by him 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 contended by the complainant that the possession of the flat had been handed over without proper infrastructure, the area is without proper roads and without lifts, there is no sufficient parking place and 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 complainant served a legal notice dated 30.9.2013 (Annexure C-5) 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 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 pleaded that the complainant had purchased the said unit on 6.8.2012 from one Mr. Anuj Gupta and the complainant was well aware of the fact that offer of possession had been issued on 18.5.2012. 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 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 possession had been offered to the complainant on 18.5.2012. It has been pleaded that as per clause 8 & 9 of the allotment letter, OP was entitled to charge the amount for the increased area and there is no illegality to that extent. Further, as per clause 8 and 9 of the allotment agreement, the complainant had given his unconditional consent to any variation and modification in the area. It has been pleaded that nothing was charged by the OP which was beyond the terms and conditions of the allotment agreement. Pleading that there is no deficiency in service or unfair trade practice on its part, OP has prayed for dismissal of the complaint.
3.         In his rejoinder, the complainant has controverted the stand of the OP and reiterated his own.  It has been contended that the possession was offered vide letter dated 1.9.2012 but the actual and physical possession was handed over only after removing the patent defects and shortcomings in the flat.  It has been pleaded that increase of a huge area of 132 sq. ft. is possible only if the drawings are changed. 
4.         The parties led evidence in support of their contentions.
5.         It is pertinent to note that in this case at the stage of arguments, the learned counsel for the complainants made an application for appointment of a Local Commissioner for measurement of the flat, which was allowed vide order dated 4.6.2014 and vide order dated 10.7.2014 the fee of the Local Commissioner was fixed at Rs.5,000/- to be paid by the complainant. However, the Local Commissioner did not file his report because of the fact that the complainant failed to make payment of his fee till 14.10.2014. Accordingly, vide order dated 14.10.2014, we observed that no further adjournment was justified for the report of the Local Commissioner and we proceeded to hear the arguments.
6.         We have appraised the entire evidence and written arguments of both sides. 
7.         The complainant has 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 1657 sq. ft. at the time of offering possession. It has been contended that the consent of the complainant was not obtained for increasing the area and the complainant has been burdened with another sum of Rs.2,72,158/-.  The complainant has urged that the OP be directed to refund the amount charged for increasing the area.
8.         We have given our thoughtful consideration to the above contentions of the complainant. 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 Annexure C-2 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 previous owner and the complainant has stepped in the shoes of the previous owner, therefore, the terms and conditions of the allotment letter are binding on the complainant. Otherwise also, the complainant cannot challenge the terms and conditions of the allotment letter dated 6.7.2009 before this Forum in the year 2013. Even if the terms and conditions of the allotment letter are to be challenged, the same can be challenged in the civil court within the period of limitation.
9.         It has been contended by the OP, that the super area has been increased from 1525 sq. ft. to 1657 sq. ft. which has resulted in pro-rata increase in the price of the flat. As already mentioned above, the complainant is bound by the terms and conditions of the allotment letter and there is no merit in his contention that the super area of the flat could not be increased from 1525 sq. ft. and his consent for increasing the area was necessary. 
10.         Apart from it, there is no such documentary evidence on the part of the complainant to establish that there is no increase in the super area. In Ansal Lotus Melange Projects Pvt. Ltd. Vs. Ibensreet Singh Bajwa, First Appeal No.288 of 2014, decided by our own Hon’ble State Commission on 17.10.2014, where the fact of increase in the area of apartment in question though disputed by the complainants, yet their contention was not supported by any cogent evidence and the complainants did not produce any evidence that their consent was required for increasing the area, it was held that in view of clause 9 of the allotment letter the OPs were entitled to charge the amount for the increased area and they did not commit any illegality in charging the amount of increased area + service tax from the complainants. Consequently, in view of the law laid down by our own Hon’ble State Commission, in this case also there is no illegality in the action of the OP in demanding the amount of Rs.2,64,000/- + taxes Rs.8,158/- total amounting to Rs.2,72,158/- for increase in the super area of the flat.
11.         The complainant has further contended that as per the allotment letter dated 6.7.2009 (Annexure C-2), the possession of the said premises was to be delivered by the OP company within a period of 24 months from the date of agreement i.e. by 6.7.2011 whereas the possession of the flat was actually handed over on 1.9.2012. It has been urged that the OP utilized the amount deposited by the complainant for such a long period, therefore, it is liable to pay compensation for inordinate delay in delivering possession and causing mental agony and harassment to the complainant.
12.         On the other hand, the OP has urged that para 10 of the allotment letter contemplates that possession is likely to be delivered within 24 months from the date of agreement and no definite period is mentioned. It has been further contended that the possession of the flat was offered to the complainant vide letter dated 18.5.2012 Annexure R-3. It has also been contended that the offer of possession was made within a reasonable time and there is only a delay of a few months which can arise in any high rise construction and there is no deficiency in service on the part of the OP on this count.  
13.         We have given our anxious consideration to the rival contentions. Clause 10 of the allotment letter (Annexure C-2) reads as under :-

                “10.   THAT the possession of the said premises is likely to be delivered by the company to the apartment allottee within a period of 24 months from the date of this agreement subject to force majeure circumstances, & on receipt of all payments punctually as per agreed terms and on receipt of completed payment of the basic sale price and other charges due and payable up to the date of possession according to the payment plan applicable to him. The Company on completion of the construction shall issue final call notice to the Apartment Allottee who shall within 30 days thereof, remit all dues and take possession of the Apartment. In the event of his failure to take possession for any reason whatsoever, he shall be deemed to have taken possession of the allotted unit for purposes of payment of maintenance charges or any other levies on account of the allotted unit, but the actual physical possession shall be given on payment of all outstanding payments as demanded by the Company. The Allottee would be liable to pay holding charge @ Rs.5/- per sq. ft. per month if he fails to take possession within 30 days from the date of issue of offer of possession.”

A perusal of clause 10 itself makes it clear that the complainant was told that the possession of the said premises was likely to be delivered by the company to him within a period of 24 months from the date of agreement i.e. 6.7.2009. It was not a definite commitment by the OP that the possession of the premises shall be delivered, within 24 months of the date of agreement.  We are of the opinion that a period of three years would be a reasonable period for delivery of the possession from the date of the agreement i.e. by 6.7.2012.  The copy of letter dated 18.5.2012 shows that the offer of possession was made to the complainant on 18.5.2012 i.e. within 3 years of the date of allotment letter. We agree with the contention of the OP that a few months delay is inevitable during construction of a high rise building. In this case since the offer of possession was made within 3 years of the allotment letter, therefore, we feel that the possession was delivered within a reasonable period.  Furthermore, the possession was taken without raising any protest or demur, therefore, the OP cannot be held deficient for any delay in handing over of the possession to the complainant.

14.         The next contention of the complainant is that the OP is also not executing sale deed because the land is still not transferred in its name. The complainant has not produced even a single letter which could show that he 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.33,50,000/- as per the allotment letter dated 6.7.2009, 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.
15.         The next contention of the complainant is that the flat has been handed over to him without proper infrastructure. 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. 
16.         We have carefully considered the above arguments. The complainant has 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 complainant for making a report about the non-availability of the 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 Annexure R-7 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. 
17.         The complainant has 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 complainant in this regard has referred to a judgment of the Hon’ble Supreme Court titled Nahalchand Laloochand Pvt. Ltd. Vs. Panchali Co-operative Housing Society Ltd.-Civil Appeal No.2544 of 2010 decided on 31.8.2010. However, we are not impressed with the above contention because as per case of the OP, the summary of dues attached with the allotment letter shows that an amount of Rs.60,000/- was to be paid by the allottee towards open car parking space. It is also stated that the said summary of dues is duly signed by the previous owner. However, the complainant has failed to produce the summary of dues attached with the allotment letter which draws an adverse inference against him.  The copy of payment plan Annexure R-2 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 complainant cannot wriggle out of the amount mentioned in the allotment letter duly signed by the previous owner. The ruling Nahalchand Laloochand Pvt. Ltd. Vs. Panchali Co-operative Housing Society Ltd. (supra) cited by the complainant relates to Maharashtra Ownership Flats (Regulations of Promotion Construction Sale, Management & Transfer) Act, 1963 and the same is not applicable to the facts of the present case. Hence, at this stage it cannot be contended by the complainant that the OP is not entitled to the car parking charges of Rs.60,000/-.
18.         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 or not? 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 owner agreed and consented to pay interest free security deposit to be worked at the time of handing over of possession on super area basis and maintenance charges determined by the OP from time to time depending upon the maintenance cost. Therefore, such charges were legally payable by the complainant and the payment thereof does not amount to any unfair trade practice.

19.         For the reasons recorded, we are of view that the complainant has not been able to prove any deficiency in service or unfair trade practice qua the OP. Consequently, the complaint merits dismissal and the same is hereby dismissed leaving the parties to bear their own costs.
20.         The certified copies of this order be sent to the parties free of charge. The file be consigned.

	Sd/-	Sd/-
15.04.2015	[Surjeet Kaur]	[P. L. Ahuja]
hg	Member	President