Mrs. Krishna Rani filed a consumer case on 27 Apr 2015 against M/s Ansal Lotus Melange Projects Pvt. Ltd. in the DF-I Consumer Court. The case no is CC/754/2013 and the judgment uploaded on 29 Apr 2015.
Chandigarh
DF-I
CC/754/2013
Mrs. Krishna Rani - Complainant(s)
Versus
M/s Ansal Lotus Melange Projects Pvt. Ltd. - Opp.Party(s)
27 Apr 2015
ORDER
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,
U.T. CHANDIGARH
========
Consumer Complaint No.
:
CC/754/2013
Date of Institution
:
10/12/2013
Date of Decision
:
27/04/2015
Mrs. Krishna Rani wife of Shri Rajinder Kumar Doda, resident of Flat No.28 GF, Palm Grove, Sector 115, Mohali.
Mrs. Krishna Rani, 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) about 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. Anil Kumar Gupta who was allotted Flat No.28 on the ground floor, Tower No.28, Sector 115, Mohali having a super built-up area of 1525 sq. ft. @ Rs.2,213.12 per sq. ft. total amounting to Rs.33,75,000/- vide allotment letter dated 29.6.2009.
According to the complainant, the OP failed to complete the construction in time despite various visits, letters and emails sent by her. Vide letter dated 20.11.2012, the complainant was offered the possession and the actual possession was delivered to her on 26.11.2012. In the meanwhile the OP intimated the complainant that the final super built up area of the flat is 1678 sq. ft. A demand of Rs.4,18,607/- was made from the complainant for the alleged enhanced area of 153 sq. ft., which was paid by her 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 her favour. It has been contended by the complainant that the possession of the flat had been handed over to her 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 complainant served a legal notice dated 30.9.2013 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 complainant has filed the instant complaint.
In its written reply, the OP has taken a number of preliminary objections including that the complainant is not consumer of the OP as she had purchased the unit in resale from one Anil Kumar Gupta; 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 averred that since all the payments have been made and the possession has been taken by the complainant, after duly satisfying herself, as such she 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 complainant had purchased the apartment from Sh. Anil Kumar Gupta on 17.11.2012 by understanding the terms and conditions and by taking from him the allotment letter and at this stage, after taking the possession, without any protest or demur, she cannot be allowed to raise issue of possession. Moreover, offer of possession had been given on 12.7.2012. 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 her 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.
In her rejoinder, the complainant has controverted the stand of the OP and reiterated her own. It has been contended that once the OP transferred the ownership of the flat to name of complainant after charging proper transfer fee, possession was handed over by the OP to her vide possession letter dated 20.11.2012 and she is residing in the flat in question with the members of her family, the present complainant stepped into the shoes of the original allottee. It has been pleaded that increase of a huge area of 153 sq. ft. is possible only if the drawings are changed.
The parties led evidence in support of their contentions.
During the pendency of the complaint, the complainant filed an application for appointment of a Local Commissioner for measurement of her 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 29.9.2014 in accordance with which the super area of the apartment of the complainant was found to be 1432.94 sq. ft. (133.123 sq.m).
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 24th August and 28th August for the purpose of taking measurements and in fact he has visited the site on 29th 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, the sit outs/balconies on the ground floor and external services. 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.28 Ground Floor
As per LC appointed by Court
As per Architect of the Company.
Area of the flat
111.286 Sq.m
113.041 Sq.m
Common Area of Balconies & Sunshades
Nil
(No Balconies on Ground floor)
15.392 Sq.m
Sit out provided at G.F. Beneath the Balconies of 1st floor.
Common area of lift well
Proportionally added to Flat
0.354 Sq.m
0.354 Sq.m
Common area of staircase Lobby on Ground Floor
Proportionally added to flat.
8.744 Sq.m
8.744 Sq.m
Common area of staircase Lobby at Terrace level
Proportionally added to flat.
2.915 Sq.m
2.915 Sq.m
Common area of Machine Room
Proportionally added to Flat.
3.326 Sq.m
3.326 Sq.m
Common Area of Pergola
Proportionally added to flat
1.861 Sq.m
1.861 Sq.m
Common area of Elevation Features
Proportionally added to flat
1.85 Sq.m
1.85 Sq.m
Common area of water tank
Proportionally added to flat.
2.787 Sq.m
2.787 Sq.m
External services (U.G. Water Tank, Service Station, Pump Room, S.T.P. Exhaust and Fresh Air Shaft, Generator Fuel Shaft, Guard Room Meter Room, Driver Room]
Not calculated
4.850 Sq.m
SUPER AREA
133.123 Sq.m
155.12 Sq.m
1432.92 Sq.m
1678.323 Sq.m
It is pertinent that in the above summary, the OP has wrongly mentioned the super area as per Local Commissioner as 1432.92 sq.m and as per architect of the company as 1678.323 sq.m whereas the same should have been sq. ft.
The objection petition has been contested by the complainant. 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.
We have appraised the entire evidence and written arguments of both sides.
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 complainant to Civil Court.
It has been contended by the complainant that the OP is 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 she 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.33,75,000/- as per the allotment letter dated 29.6.2009 issued in favour of the previous allottee, 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.
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 complainant towards open car parking space. It is also stated that the said summary of dues is duly signed by the previous allottee. However, the complainant has failed to produce the copy of summary of dues attached with the allotment letter which draws an adverse inference against her. 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 1st floor roof slab. The complainant cannot wriggle out of the amount mentioned in the allotment letter duly signed by the previous allottee. 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/-.
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 allottee 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.
The next contention of the complainant is that the flat has been handed over to her 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 herself regarding the quality, facilities and comfort in the project and after making payment without any protest or demur, her objections are meaningless.
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 abovesaid 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 abovesaid facilities. So far as the contention of the complainant that she 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-6 and 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.
The complainant has 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. 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.4,18,607/-. The complainant has urged that the OP be directed to refund the amount charged for increasing the area.
We have given our anxious 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 also show that the plans, designs, specifications shown to the allottee were tentative. The said plans and specifications were accepted by the previous 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 allottee 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 allottee with open eyes and after understanding the terms and conditions of the same. The complainant has stepped in the shoes of the previous owner, therefore, the terms and conditions of the allotment letter are binding on her. Otherwise also, the complainant cannot challenge the terms and conditions of the allotment letter dated 29.6.2009 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 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 1525 sq. ft.
The next question that arises for determination is whether the super area of the apartment of the complainant has actually been increased from 1525 sq. ft. to 1678 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 complainant. A perusal of the report of Sh. Kamaldeep Singh, Architect reveals that the actual measurements were taken at site by him on 24th & 28th 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, area of balconies and sunshades, common area of lift well, common area of stair case lobby on third floor, common area of staircase lobby at terrace level, common area of machine room, common area of pergola, common area of elevational features and common area of water tank, proportionally added to flat. He has come to the conclusion after all these measurements that super area of the flat in question is 133.123 sq.m/1432.94 sq.ft.
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 24th and 28th 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 29th 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 sit outs/balconies on the ground floor and external services were ignored. Further, the MB books provided with the reply has 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.
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 complainant 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 complainant 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 4.12.2014 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 29.9.2014, in the presence of the learned proxy counsel for the OP and the case was listed for filing of the objections on behalf of the parties on 21.10.2014. However, on that date, objections were not stated to be ready and the case was adjourned to 11.11.2014. On 11.11.2014, objections were not filed on the ground that the copy of the report of the Local Commissioner was not received. The case was again adjourned to 2.12.2014 for filing of the objections. Again on 2.12.2014, the counsel for the OP made a request for adjournment for filing objections and the same were filed only at 2:01 p.m. on 4.12.2014. 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 24th August being Sunday. Even if it is assumed that the architect of the company could not reach the site on 24th 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 supported only by a short affidavit of Mr. Deepak Makhija, authorised signatory. That affidavit is no affidavit in the eyes of law. 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 1678 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.
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, the sit outs/balconies on the ground floor etc. 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-3 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 complainant was found to be 1432.94 sq. ft. instead of 1678.323 sq. ft. calculated by the architect of the OP. It is important to note that the complainant in her complaint has made a request to refund the sum of Rs.4,18,607/- charged illegally on the pretext of enhanced super built area. There is no such plea in the complaint that the super built area of the flat is less than 1525 sq. ft. and the OP is liable to refund the amount beyond 1432.94 sq. ft. Consequently, we are of the view that the complainant is entitled to the refund of Rs.4,18,607/- illegally charged by the OP. The demand of the OP of an amount of Rs.4,18,607/- representing the super area as 1678.323 sq. ft. is illegal. The OP is guilty of unfair trade practice in recovering the amount of Rs.4,18,607/- from the complainant.
The complainant has further contended that as per the allotment letter dated 29.6.2009 (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 29.6.2011 whereas the possession of the flat was actually offered vide letter dated 20.11.2012. 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.
We have carefully considered the above arguments of the complainant but we are not impressed with the same. Significantly, the complainant purchased the said flat from the previous allottee Mr. Anil Kumar Gupta on 17.11.2012 and as per letter Annexure C-3 the complainant was issued a possession letter on 20.11.2012 and the physical possession was taken by her on 26.11.2012. When the complainant obtained the possession of the apartment within 9 days of its purchase, the objection raised by the complainant in respect of delay in handing over the possession is not tenable.
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 refund the amount of Rs.4,18,607/-to the complainant with interest @ 9% per annum from the date of payment till realization by 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 her 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.
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.
The certified copies of this order be sent to the parties free of charge. The file be consigned.
Sd/-
Sd/-
27.04.2015
[Surjeet Kaur]
[P. L. Ahuja]
hg
Member
President
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