Chandigarh

DF-I

CC/865/2014

Kamla Talwar - Complainant(s)

Versus

M/S Gee City Builders Pvt. Ltd. - Opp.Party(s)

G.S.Sidhu

10 Dec 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

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Consumer Complaint No.	:	CC/865/2014
Date of Institution	:	31/12/2014
Date of Decision	:	10/12/2015

 

 

1.     Kamla Talwar w/o late Sh. M.L. Talwar r/o H.No.1302, Sector 15-A, Chandigarh.

 

2.     Raj Kiran Talwar s/o late Sh. M.L. Talwar r/o H.No.1302, Sector 15-A, Chandigarh.

…..Complainants

V E R S U S

1.     M/s Gee City Builders Pvt. Ltd. Office # 1464, Sector 43-B, Chandigarh through its authorised signatory Shri Jatinder Mittal s/o Sh. R.L. Mittal r/o H.No.601, Sector 6, Panchkula.

 

2.     Rishi Maintenance Services Pvt. Ltd., Rishi Apartment Zirakpur Distt. S.A.S. Nagar Mohali through its M.D.

 

3.     Sh. Jatinder Malhotra s/o L. D.P. Malhotra r/o H.No.242, Sector 21, Chandigarh

……Opposite Parties

 

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

                               

                                               

For complainants	:	Sh. G.S. Sidhu, Advocate.
For OPs No.1 & 2	:	Sh. Dharindra Shukla, Advocate.
OP-3	:	Ex-parte

PER P.L.AHUJA, PRESIDENT

1.         Smt. Kamla Talwar and Sh. Raj Kiran Talwar, complainants have filed this consumer complaint under Section 12 of the Consumer Protection Act, 1986, against M/s Gee City Builders Pvt. Ltd. and others, Opposite Parties (hereinafter called the OPs), alleging that they had purchased flat No.A-604 in the Rishi Apartments, Zirakpur from OP-1 through OP-3 and physical possession of the flat was delivered on 10.8.2011. 

                According to the complainants, as per terms and conditions of the possession letter, they deposited security of Rs.10,000/- and one year advance charges amounting to Rs.16,200/- to the company i.e. M/s Gee City Builders Pvt. Ltd.  Thereafter the complainants also deposited Rs.5,400/- towards maintenance charges vide cheque dated 13.9.2012 with OP-2, who was concerned with the maintenance of apartments on behalf of OP-1.  Thereafter the condition of complainants flat started deteriorating and the essential maintenance services to be provided by OPs 1 & 2 came to a standstill.  Most of the lifts were out of order due to poor maintenance and unavailability of power back up facility; OPs 1 & 2 were also lacking in providing round the clock other essential services agreed upon by them; OPs 1 & 2 had also unilaterally increased the monthly maintenance charges; condition of the roofs and walls of the flat were damaged; plaster of Paris and the resultant paint of the entire drawing and dining room of the complainants flat had fallen on the floor; no inspection of the overhead water tanks etc. was being done in order to maintain them.  The complainants have contended that they brought the matter to the notice of OP-3 who took up the same with OPs 1 & 2, but to no avail. When the complainants’ oral requests to OPs 1 & 2 did not bring any result, they through letters dated 6.2.2013 and 13.5.2014 brought the matter to their notice, but, despite that nothing substantive was done.  Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of the OPs, the complainants have filed the instant complaint.

2.         In their written statement, OPs 1 & 2 have taken a number of preliminary objections including that the complainants are not consumers as the flat was purchased by them for commercial purposes; that the complaint is barred by limitation; that the complainants have got no locus-standi to file the present complaint since the possession had been taken by them after duly satisfying themselves.  It has been admitted that the complainants purchased the flat in question.  It has been averred that properly operated lifts and maintenance facilities are available around the clock.  It has been pleaded that the OPs are not liable to maintain the flat as there is no contract or agreement between the complainants and the OPs with regard to maintenance of the flat after the possession had been handed over to them in the year 2011.  It has been pleaded that a maintenance agreement had been entered into between the complainants and the OPs on 10.8.2011 for maintaining the common area of the complex only and there is no clause in the agreement between the parties to provide maintenance of the flat.  It has been stated that the main grievance of the complainants is that the roofs and walls of the flats from inside had damaged and the walls of the flats started peeling and falling off, plaster of Paris and paint of the drawing and dining room had fallen on the floor, which was not the duty of the OPs to maintain.  It has been contended that the complainants are making false allegation against the OPs just to avoid payment of arrears of maintenance charges which became due since January 2013 alongwith interest @ 24% as per clause 6 of the maintenance agreement. Pleading that there is no deficiency in service or unfair trade practice on their part, OPs have prayed for dismissal of the complaint. 
3.         Pursuant to the notice issued to OP-3, Sh. Devinder Kumar, proxy counsel for Sh. H.S. Saini, Counsel for OP-3 appeared on his behalf and the case was adjourned to 30.4.2015 for filing vakalatnama, reply and evidence. However, on the adjourned date, neither the vakalatnama, reply and evidence was filed on behalf of OP-3 nor anybody put appearance on his behalf, therefore, he was proceeded ex-parte.
4.         In their rejoinder, the complainants have controverted the stand of the OPs and reiterated their own. It has been contended that the maintenance agreement clearly provides that the common areas would be maintained by OPs 1 & 2, therefore, the leakage of overhead tank which resulted into seepage of water into the roof of complainants’ flat is also part and parcel of the maintenance agreement.
5.         The parties led evidence in support of their contentions.
6.         After appraising the entire evidence and written arguments submitted by both the learned Counsels for the Parties, we find that the Complaint merits dismissal.
7.         At the outset, it has been contended on behalf of the Opposite Parties No.1 & 2 that the Complainants are not ‘Consumers’, as per the definition contained in Section 2(1)(d) of the Consumer Protection Act, 1986. The Complainants have asserted that they are ‘Consumers’ as per the definition of ‘Consumer’ provided in said Act of 1986, and their Complaint is maintainable in the present form. However, we feel that the contention of the Opposite Parties No.1 & 2 carries considerable force and the same must prevail. Significantly, the Complainants have themselves indicated their address as H.No.1302, Sector  15-A, Chandigarh in the Complaint. The Opposite Parties No.1 & 2 have taken a specific objection that the Complainants are residents of Chandigarh in their own house at Sector 15-A, Chandigarh, and purchase of the second house is for commercial purpose. The Complainants have not denied in their rejoinder that they are residing in their own house i.e. H.No.1302, Sector 15-A, Chandigarh.  Furthermore, it is the admitted case of the Complainants that they took the possession of the Flat, in question, on 10.08.2011, but they are not residing in the same. We are of the opinion that since the Complainants are having their own house in Sector 15-A, Chandigarh and they took possession of the flat, in question, on 10.08.2011, and are not residing in the same, they are investors who purchased the flat in order to earn benefit. Since the purchase of the flat in question is for commercial purpose, therefore, the Complainants are not consumers, as defined in Section 2(1)(d) of the Consumer Protection Act, 1986.
8.         In Chilkuri Adarsh Vs. Ess Ess Vee Construction, III (2012) CPJ 315, the Hon’ble National Consumer Disputes Redressal Commission, has held that when a Consumer has booked more than one unit of residential premises, it amounts to booking of such premises for commercial purpose.  This ruling was relied by the Hon’ble National Consumer Disputes Redressal Commission in Indrajit Dutta Vs. Samriddhi Developers Pvt. Ltd. and Others, First Appeal No. 1219 of 2014, decided on 05.02.2015, whereby it was held that a Consumer cannot book two different Villas. As the Complainant had purchased two flats it could not be said to be for his residential purpose, but amounts to investment for commercial purpose and the Complainant does not fall within the purview of the ‘Consumer’.  In Anil Dutt Vs. M/s Business Park Town Planners Ltd. (BPTP), Consumer Complaint No.159 of 2012, decided on 01.10.2013, in similar circumstances, it was held that the intention of the Complainant was to resell the flats, and the flats were not purchased for personal use of the consumer, therefore, the Consumer Complaint was not maintainable. The Complainants of the instant case, who are already owners in possession of a house in Sector 15-A, Chandigarh, have not elaborated as to how the flat, in question, was purchased from Opposite Party No.1 for their own use. Consequently, in view of the law laid down in the above cited rulings, the Complainants do not fall within the definition of ‘Consumer’ as defined in the Consumer Protection Act, 1986, because the booking of the flat, in question, was for investment/commercial purpose, therefore, their Complaint is not maintainable. 
9.         Even if it is assumed for the sake of arguments that the Complainants are ‘Consumers’, as defined in the Consumer Protection Act, 1986, then it is important to note that, the Complainants have alleged that the material from the roof and the walls of the flat started peeling and falling off and even the roof casting came off due to leakage in the overhead water tanks of the Apartment/Building in which the flat of the Complainants is situated. The present Consumer Complaint was filed on 31.12.2014. A perusal of the possession letter of the flat dated 10.08.2011 (Annexure C-1) reveals that the Complainants gave the following undertaking:-

“UNDERTAKING

        I/We, the undersigned have taken over the actual physical possession of Flat No. “A-604”, Rishi Apartments, Zirakpur from today onwards i.e. 10/8/2011 and are fully satisfied with the construction, workmanship, design, specifications, building material and all fittings & fixtures etc. I/ We will have no claim, presently or in future, against Complaint, objection or deficiency of whatsoever nature against the Promoter/ Company M/s Gee City Builders Pvt. Ltd. and shall abide by the Agreement of Sale and Maintenance Agreement.

        I/We further undertake that I/We will make payment of Service Tax in lump sum, if applicable, on receipt of intimation from the Builder/ Company.”

                We are of the view that since the Complainants undertook on 10.08.2011 that they were fully satisfied with the construction, workmanship, design, specifications, building material and all fittings & fixtures etc. and they would have no claim, objection or deficiency of whatsoever nature against the Opposite Parties No.1 & 2, therefore, the Complaint filed on 31.12.2014 is patently barred by limitation.  

10.         Thirdly, according to the Complainants, most of the time, the lifts in the building are out of order due to poor maintenance and unavailability of power back up facility. The Opposite Parties No.1 & 2 in their written statement have categorically pleaded that the lifts installed by them in the Complex are of a reputed brand “KONE” and there is annual maintenance contract with the maintenance agency for its proper maintenance, working and repair, and no Complaint has ever been received in this regard from any resident of the Complex. The Complainants have not produced any affidavit of any other resident about the non- functioning of the lifts. Therefore, there is no sufficient evidence to infer that the lifts are not being properly maintained, and there is non-availability of power back-up facility.
11.         Fourthly, the Complainants are aggrieved due to leakage of overhead water tanks, which has allegedly resulted in damage to the roofs and walls of the flats on top floors of the Apartments, including the Apartment in which the Complainants’ flat is existing. It is worth noting that the Complainants have not produced any expert evidence to prove that due to leakage of overhead water tanks, damage has been caused to the roofs and walls of the flats on the top floor. The Complainants have not filed even a single affidavit of their neighbourers to corroborate the above allegation. To cap it all, no application was filed by the Complainants for appointment of a Local Commissioner for a report on the factual position at the spot. Hence, the above allegation is also not proved by the Complainants. Otherwise also, there is no clause in the Agreement between the parties to provide the maintenance of the flat. The Complainants have admitted that they are not residing in the flat, and the same remains locked and this fact proves that they have not been maintaining the flat. Hence, no inference of deficiency in service on the part of the Opposite Parties No.1 & 2 can be raised on this count.
12.         The last grievance of the Complainants relates to unilateral increase of the monthly maintenance charges, without consulting the residents and owners of the flats. According to the Complainants, the rates are not reasonable and at par with the necessary maintenance services rendered by the Opposite Parties No.1 & 2.  However, we find that the Complainants are liable to make payment of the maintenance charges as per Maintenance Agreement (Page No.19 to 23 of the paper book). According to the Opposite Parties No.1 & 2, the Complainants are making false allegations to avoid the payment of arrears of the maintenance charges which became due since January, 2013, along with interest at the rate of 24 percent per annum as per Clause No.6 of the Maintenance Agreement dated 10.08.2011. It is noteworthy that the Complainants have not produced any evidence to this effect that the maintenance charges demanded by the Opposite Parties No.1 & 2 are not reasonable and at par with the necessary maintenance services rendered by them. It is also important to note that as per the case of the Opposite Parties, the monthly maintenance charges had never been increased since the handing over the possession of the flat. Moreover, the maintenance of the Complex has already been handed over to the Residents Welfare Association with effect from 01.06.2014. The Residents Welfare Association has not been impleaded as a party in this Complaint. Consequently, there is no definite evidence to this effect that Opposite Parties No.1 and 2 are charging exorbitant rate of maintenance from the Complainants.    
13.         For the reasons recorded above, we do not find even a shred of evidence to prove any deficiency in service or unfair trade practice on the part of Opposite Parties No.1 & 2. Consequently, the Consumer Complaint fails and the same is dismissed, leaving the parties to bear their own costs.     
14.         The certified copies of this order be sent to the parties free of charge. The file be consigned.

		Sd/-	Sd/-
10/12/2015		[Surjeet Kaur]	[P. L. Ahuja]
		Member	President
“Dutt”