Chandigarh

DF-I

CC/716/2013

Sarjit Singh Saini - Complainant(s)

Versus

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

26 Oct 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

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Consumer Complaint No.	:	CC/716/2013
Date of Institution	:	25/11/2013
Date of Decision	:	26/10/2015

 

 

1.      Sarjit Singh Saini

2.      Sarabjit Singh Saini, both residents of QR No.D2, Hospital Sector, Bhillai, Chhattisgarh.

…..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.         S/Sh. Sarjit Singh Saini and Sarabjit Singh Saini, 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 18.4.2011 and they were allotted Flat No.202 on 2^nd floor of Tower No.8 in Orchard County – 1, Sector 115, Mohali on the Kharar-Landran Road having a super built-up area of 1701 sq.ft. @ Rs.2,450/- per. Sq. ft. and PL Charges @ Rs.75/- per sq. ft. total amounting to Rs.42,95,025/- vide allotment letter dated 16.7.2011 (Annexure C-2).

                According to the complainants, the OP handed over possession to them vide possession letter dated 31.10.2012 (Annexure C-3). The OP at the same time intimated the complainants that there was an increase in the super built-up area by 51 sq. ft. for which an amount of Rs.1,32,754/- 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 50 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 1751.841 sq. ft. (162.75 sq.m).
6.         The parties did not file any objection petition against the report of the Local Commissioner.
7.         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. 
8.         We have appraised the entire evidence and written arguments of both sides and have also heard the learned counsel for the parties on application as well as the main complaint case.
9.         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. On 11.2.2015, the learned counsel for the OP stated that no objections against the report of the Local Commissioner were to be filed.   Now the OP wants to produce an affidavit of Mr. Anil Tyagi, Architect wherein it is mentioned that the super area has not been calculated correctly by the local commissioner and his report is arbitrary and incomplete.  We feel that when no objections have been filed against the report of the local commissioner, the affidavit of Mr. Anil Tyagi challenging that report is meaningless and cannot be allowed to be produced at this belated stage.  Otherwise also, evidence beyond pleadings cannot be read. We do not find any merit in the application to place on record the affidavit of architect at this stage and the same is dismissed.
10.         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.
11.         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.42,95,025/- as per the allotment letter dated 16.7.2011 (Annexure C-2), 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.
12.         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. But, 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/-.
13.         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. 
14.         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. 
15.         The complainants have next contended that the OP at its own has increased the super built-up area of the flat from 1701 sq. ft. at the time of booking to 1751 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.1,32,754/-.  The complainants have urged that the OP be directed to refund the amount charged for increasing the area.
16.         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 1701 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 16.7.2011 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 1701 sq. ft.
17.         The next question that arises for determination is whether the super area of the apartment of the complainants has actually been increased from 1701 sq. ft. to 1751 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 162.75 sq.m/1751.841 sq.ft.  Since no objections have been filed by either of the parties against this report, therefore, this report can safely be relied upon.  When the super area of the flat in question is 1751 sq. ft., the OP rightly charged an amount of Rs.1,32,754/- from the complainants towards the increase in the super built area. We do not find any deficiency in service or unfair trade practice on the part of the OP on this account. 
18.         For the reasons recorded above, we do not find any merit in the complaint and the same is dismissed with no order as to costs.
19.         The certified copies of this order be sent to the parties free of charge. The file be consigned.

	Sd/-	Sd/-
26/10/2015	[Surjeet Kaur]	[P. L. Ahuja]
hg	Member	President