STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA
Date of Institution: 15.03.2017
Date of final hearing: 04.05.2023
Date of pronouncement: 14.06.2023
CONSUMER COMPLAINT NO. 146 OF 2017
IN THE MATTER OF: -
Neera Dewan W/o Sh. Kaushal Dewan, Resident of House No. 817, Sector-2, Panchkula, Haryana.
…..Complainant
Versus
1. Suncity Projects Pvt. Ltd. Group Housing Project “Parikrama” Sector-20 Panchkula-134116 (Adjacent to Jr. St. Xaviar’s School) (Haryana) through its Authorized representative.
2nd Address:
Suncity Projects Pvt. Ltd. Corporate Office- Suncity Business Tower, Second Floor- Gold Course Road, Sector 54, Gurgaon-122002 Haryana through its Authorized Representative.
…..Opposite Parties
CORAM: Naresh Katyal, Judicial Member
Argued By:- Sh. Prashant Gupta, counsel for the complainant along with Sh. Kaushal Dewan in person.
Sh. Ashim Aggarwal, counsel for opposite parties.
ORDER
NARESH KATYAL, JUDICIAL MEMBER:
Facts, in complaint are: complainant booked apartment with opposite party (OP) for her unmarried daughters in their project of name and style “Suncity Project Pvt. Ltd.” at Parikrama, Sector-20, Panchkula. She paid Rs.53,79,885/- as booking amount. OP issued allotment letter dated 21.04.2010 (Annexure C-1) whereby she was allotted Apartment No. 902, situated at 9th Floor, Tower 5B in said project. It is averred that complainant made payment in installments through her account in OBC Bank, Panchkula (details as mentioned in Para No. 2 of complaint) and total amount paid is Rs.61,75,672/- (Annexure C-2 colly). On 16.11.2010, OP executed Apartment Buyers Floor Agreement (Annexure C-3) which reveals that complainant was allotted apartment having area of 1850 sq. ft. and price payable was Rs.61,75,672/- inclusive of car parking, PLC, EDC/IDC charges, service tax, interest free maintenance security etc. Clause 25 of said agreement stipulates that possession would be offered within period of 36 months from date of execution of agreement. As per Annexure VI of agreement; apartment was to be handed over to complainant after completing its interior like flooring, CP fittings, white wash, modular kitchen fittings etc. Since the payments were down payment plan (Annexure IV of Apartment Buyer’s Agreement); complainant started making payments, as and when demanded by OPs. It is pleaded that after three years from date of execution Apartment Buyer Agreement; OP was bound to deliver possession on or before 15.11.2013 with complete project specification and features as mentioned in agreement in its Annexure-VI, but project was delayed by 26 months from the tentative date i.e. 15.11.2013 of offer of possession.
2. Complainant was offered possession of apartment vide letter dated 29.01.2016 (Annexure C-5) with assessment of compensation on delayed possession of Rs.4,78,533/- (as per clause 25 of agreement for delay in project period from 15.11.2013 to 29.01.2016) i.e. with effect from signing the buyer agreement, instead, with effect from making of booking payment. It is pleaded that OP assessed compensation for delayed project for almost three months at the rate of Rs.10/- per sq. ft. amounting to Rs.1,10,000/-. Complainant sent email dated 01.02.2016 to OP for wrong calculation of compensation on delayed possession and asked to recalculate the same and adjust against unpaid amount.
3. Complainant visited the site to take possession. She came to know that project was not complete in all respects and immediately informed Mr. Amit Aggarwal (representative of OP). Deficiency was brought to the notice of OP vide email dated 20.02.2016. Due to discrepancies, complainant refused to take possession and asked OP to remove all deficiencies. She received no response and she again sent reminders vide email dated 30.03.2016 & 11.06.2016. Meantime, she paid maintenance charges of apartment of Rs.45,754/- to OP in good faith to get the apartment ready in all respects immediately. She sent reminder to Chairman of OP vide email dated 20.08.2016. Thereafter, one Sushil Mehra invited complainant to visit site on 29.08.2016 and he assured that all pending repairs and finishing work will be completed without any further delay.
4. She sent reminder vide email dated 21.11.2016 for handing over the possession of apartment, after removal of defeats and deficiencies. OP sent reply via email dated 22.11.2016 through Sh. Sushil Mehra AGM Marketing and he confirmed that points mentioned by complainant for rectification have been rectified. She sent email dated 26.11.2016 to allow her again for physical verification of apartment. She visited apartment on 04.12.2016 for inspection and OP’s representative noted down all deficiencies in apartment and assured that it would be removed and repaired at the earliest. Complainant again visited the apartment on 24.12.2016 along with Er. S.C. Goel for inspection after getting assurance from OP for getting removal of deficiencies. Nothing, has been rectified and no deficiency has been removed by OP.
5. OP again sent email on 01.02.2017 (Annexure C-9) and again assured complainant that defects in apartment have been rectified and she should took possession whenever she likes. Complainant again visited apartment on 12.02.2017 with Er. S.C. Goel for inspection. Second inspection report was concluded with same remarks as mentioned in first inspection report.
6. It is alleged that OP has duped complainant of her amount which amounts to deficiency in its service. Complainant faced lot of pain, agony and physical harassment. OP is bound to provide possession of apartment to her, according to specification as mentioned in agreement, without any defect and deficiency.
7. Thus, by pleading course of action; complainant has filed this complaint with prayer that; OP be directed to hand over the possession of apartment after removal of all defects and deficiencies and complete in all respects. OP be directed to pay her compensation on delayed possession from the date of offer of possession i.e. 29.01.2016 till it is complete in all respects and to pay compensation on delayed possession for 6 months w.e.f. date of booking of apartment, instead, from the execution of agreement. OP be directed to refund Rs.45,754/- which they have received for maintenance charges along with interest @ 15%. OP further be directed to pay Rs.10,00,000/- on account of deficiency in service, mental agony and harassment to complainant and Rs.60,000/- as cost of litigation expenses. Entire text of complaint is supported by complainant’s affidavit.
8. OP raised contest. In defence so entered; in preliminary objections it is asserted that; allegation and averments raised in complaint are false and without any basis. Complainant has approached this Commission with unclean hands by not disclosing true facts. Complainant does not fall in definition of consumer. She is investor who booked ready to move two apartments (another apartment no. 901, Tower 5B in the name of her husband Sh. Kaushal Dewan) which is subjected in complaint No. 145 of 2017) for earning profits. She is resident of sector 2 which means she is already a house and booking of two more units is deemed to be for commercial purpose. It is pleaded that complainant has, with mala fide intention, deliberately not set out complete clause No. 25 of agreement in compliant. Clause 25 states that owner contemplates to complete the construction of building/apartment within three years of the execution of agreement or approval of all service plans which is later. Agreement provided for compensation to allottee, for any delay in completion of construction. Thus, time was not the essence of agreement as there was no definite time set out for completion and it was only contemplated/proposed that completion would be completed within three years. Service Plans were approved by DTP Haryana on 27.12.2013 and Occupation Certificate for tower, where flat of complainant is located, was obtained on 18.01.2016 and possession was offered to complainant on 29.01.2016 which is well within time specified in clause 25. Hence, it is pleaded that there is no cause of action in favour of complainant. Complaint has been filed with ulterior motive to harass humiliate and to extract undue benefit from OP. There is no deficiency, fault, imperfection, short coming or inadequacy in the quality nature and manner of service provided by OP to complainant. It is pleaded that complainant is a default and not taken over possession, citing extraneous reasons despite repeated reminders sent. Commission has no jurisdiction in view of clause 81 of agreement dated 16.11.2010 that all disputes shall be referred to arbitration. Commission does not have pecuniary jurisdiction. In addition, on merits, it is pleaded that complaint is time barred as it has been filed after seven years of signing of agreement. Possession was offered on 29.01.2016 within time line specified under agreement and there is no delay. However as a goodwill gesture and in view of complainant being valuable customer; OP has also granted her compensation for delayed possession calculated from three years of agreement. It is denied that compensation is payable from date of booking. There is no question of any wrong calculation and recalculation. It is denied that there is any discrepancy or defect in the apartment. Receipts of emails and contents thereof have also been denied. Payment of maintenance charges is liability of complainant as per agreement and accordingly she paid maintenance charges and executed maintenance agreement dated 11.02.2016. There is no deficiency in the apartment and any reasonable grievances of complainant were given due attention and acted upon accordingly. It is complainant, who is not turning up to take possession of apartment despite repeated requests and reminders. It is denied that complainant visited the site on 04.12.2016 for inspection. Contents of inspection report Annexure C-8 have been denied. It is denied that any such report has been prepared in the presence of OP or that there are any deficiencies as alleged in the report. It is pleaded that Er. S.C. Goel is not approved Architect or Engineer and as such not competent to prepare any alleged report at the back of OP. Unilateral report is in face of occupation certificate granted by competent authority and is not binding upon OP or on this Commission. Inspection report Annexure C-8 is one sided, concocted and false. It is pleaded that possession was offer to complainant 29.01.2016 upon completion of all amenities an obtaining of occupation certificate on 18.01.2016. It is denied that complainant has suffered mental pain, agony and physical harassment. It is denied that there is deficiency in service or unfair trade practice on the part of OP. It is pleaded that number of allottees have taken on possession in Tower 5-B and residing there which prove that there are no issues in the unit. It is denied that OP has duped complainant. Other please have also been denied and dismissal of complaint has been prayed.
9. Parties to this lis, led their respective evidence. Complainant recorded her statement CW-1 and also relied upon documents Ex.C1 to Ex. C-10 and closed her evidence on 06.11.2018. OP has tendered duly sworn affidavit Ex.OPW-1/A of Sh. Ashwani Sharma and relied on documents Ex.OP-1 to Ex.OP-4 and closed its evidence on through statement of counsel dated 01.07.2019.
10. On 05.12.2022; counsel for complainant filed brief arguments. On 19.01.2023, counsel for OP submitted written arguments.
11. This Commission has heard oral arguments addressed by learned counsel for both parties on 04.05.2023. Written submissions placed on record by both the parties, too have been perused. Both learned counsel appearing for parties to this lis have urged strictly as per the case set up by them respectively, in pleadings and in written submissions.
12. It is admitted that complainant booked apartment in the project of OP. It is also admitted that OP issued allotment letter dated 21.04.2010 vide which apartment No. 902 situated on 9th Floor, Tower 5B was allotted to complainant. It is also admitted that complainant has made payment in relation to the apartment amounting to Rs.61,75,672/-. Service Plan was approved on 27.12.2013 by DTP-Haryana. Completion certificate was obtained, on 18.01.2016 by OP. Thereafter, complainant was offered possession of apartment/unit on 29.01.2016. It is also admitted that clause 25 of agreement was enforced and in terms thereof; OP credited Rs.4,78,533/- as compensation by taking delay from the date of agreement and not from approval of service plan.
13. Now, poser before this Commission is: whether offer of possession qua apartment in question (No.902), given to complainant on 29.01.2016, which admittedly has not been adhered to by complainant so far, would at legal pedestal, confer indefeasible and legitimate right upon complainant, not to accept the offer of possession, for the reasons allegedly quoted by her in complaint and in her statement as CW-1 that there were galore of defects/deficiencies in the apartment, which prevented her from taking possession.
14. To adjudicate above poser, it has, at first, to be borne in mind that occupation certificate dated 18.01.2016 (Ex.OP-3) has been granted by Director General, Town and Country Planning, Haryana. Being issued by a competent authority, it has enough credibility attached to it in legal parlance. Enormous ramifications flow from this piece of documentary evidence. It is construed on the basis of document Ex. OP-3 that building is complete for occupation. There is no denial by complainant, to document Ex. OP-3 either in pleading or by leading any evidence, in order to outscore its credence. Had, there been any structural defects, manifested by usage of poor quality material etc. or construction on project in question having been raised beyond and contrary to parameters of approved structural plan, which could render the building, being totally unsafe/unfit for human inhabitation, then document Ex. OP-3 dated 18.01.2016 could not have got light of its day. Notwithstanding, the complainant’s allegations pertaining to defects/deficiencies or construction being incomplete, it is not the case set up by her, either in pleadings of complaint or in her statement as CW-1 that apartment allotted to her is totally unsafe/unfit for human inhabitation.
15. Annexure C-6 is the letter dated 20.02.2016 addressed by complainant’s husband to OP. In this letter, it is stated that few changes and repairs are required in both apartments (901 & 902). These are:
1. Main door- Peep hole, not OK and height should be 5’ height door.
2. Other inside door:- Provision of door stoppers and painting with a proper base.
3. Flooring :- wooden flooring in master bedroom and proper grouting in the rest vitrified flooring in apartments.
4. Electrical:
a) Living Room:- All switches, sockets, fan regulations etc. are in the center of the wall and it very low height as per normal standard. It should be above 4 feet height and at the corner of the wall.
b) Bedroom’s:- Bed side switches should be at 2’ feet height and inner gap should be 6 ½’ to lay the bed.
c) Washing machine provision:- Should be on the other side of the balcony including water tap, switches etc. (to be practical)
5. Kitchen:- The followingis to be checked thoroughly
i. Quality of accessories is very poor, getting rusted.
ii. Though-full accessories not provided (As required in a modular kitchen) at least one perforated cutlery basket is required.
iii. Please provide one carousel basket otherwise space cannot be utilized (Door Hings provided are not OK. We are not able to open the door fully. Please provide suitable hinges)
6. Painting and apartments: Please refer the specifications provided in the agreement. entire walls and ceilings to be prepared with P.O.P base, which is not yet done. Hence please take care.
16. Rectifications of defects noted above have thus been sought. Letter dated 20.08.2016 has been put across to this Commission. It contains recital that repairs and modifications have not been carried out. Another email dated 17.02.2017 recites that; husband of complainant along with Sh. Sushil Mehra inspected both apartments and complainant was assured that all pending repair work will be done, without further delay. Earlier, on 26.11.2016, complainant’s husband is writing email to Sh. Sushil Mehra, by stating that possession of flat be handed over after necessary repairs. Complainant has again stated for physical verification of unit/apartment. Annexure C-8 mentions certain deficiencies with respect to both units i.e. 901 & 902, bears signature of Amit Kumar on 04.12.2016. Palpably, from nature of defects and deficiencies pointed out by complainant, it can be construed that complainant has been raising the issue of defects and deficiencies, only to enhance and optimize the level of her own comfort zone in the apartment allotted to her. It is already observed herein before that nothing has been pointed out by complainant from her pleadings and also in her evidence which could even remotely establish that apartment (No. 902) allotted to her by OP, is totally unsafe/unfit of human inhabitation. It would always be open to complainant to make changes qua electrical fitting, appliances etc. and contemplate other changes of varied nature, as per her own suitability, only after entering in the allotted apartment and start living there.
17. Eventually, complainant has relied upon the report of Er. S.C. Goel. Report is dated 27.02.2017 Ex.C-9, as per which, Er. S.C. Goel had conducted inspection of the unit of complainant (No. 902), twice on 24.12.2016 & 12.02.2017. His conclusion in his report dated 27.02.2017 runs in following terms:-
“In view of the above facts which have come to the notice of the consultant upon his personal inspection carried out on 24/12/2016 and 12/02/2017 of the Apartment No. 902, Tower 5-B, Parikarma, Sector-20, Panchkula. The said apartment is not ready for possession/habitation by the client due to the shoddy and poor workmanship, the quality of the floor tiles, the fittings in the kitchen as also the inappropriate affixation of the electrical switch boards of the apartment which are not well planned and also not as per requirement. Thereafter, the developer/builder should carry out substantial replacement & repairs so as to make the said apartment habitable.”
This report cannot be considered in evidence of complainant. It carries no substance. Reasons are obvious. This report is unilateral in nature. No prior notice has been given to OP, by Er. S.C. Goel, before conducting two inspections. Inspection of apartment, allotted to complainant has been conducted on two dates (24.12.2016 & 12.02.2017) at the back of representative of OP. Moreover, this report will not prevail over the domain of occupation certificate granted to OP by competent authority i.e. Director General, Town and Country Planning, Haryana which is clear pointer to the fact that building is complete for occupation. As a corollary so flowing, this occupation certificate dated 18.01.2016 has an important bearing on apartment allotted to complainant, and it would completely traumatize the veracity of complainant’s allegations regarding defects and deficiencies in the allotted apartment.
18. In the wake of above critical discussion, it is held that the act of complainant in not responding the offer of possession under the shield of false allegations that unit/apartment contain defects and deficiencies and her continuous perpetuation qua these allegations by revealing new deficiency, at her whims, indicates that she has never intended to take possession of unit allotted to her.
19. As a sequel, to the subjective analysis of all relevant facets of this complaint, only inescapable conclusion is that; there is no deficiency in the service of OP. Since there is no deficiency in service of OP and rather OP, as good will gesture has credited compensation of Rs.4,78,533/- for delay, if any, in terms of clause 25 of agreement, therefore, it would be travesty of justice for OP, to further award any compensation to complainant which is otherwise not tenable, even on invoking principal of equity. Hence, all claims of complainant, qua compensation as asserted in prayer clause of complaint, are thrown overboard and dismissed by holding that no compensation can be awarded to complainant. Resultantly, this complaint is dismissed, so far as, all claims/prayers pertaining to compensation raised by complainant are concerned.
So far as relief for possession of apartment No. 902 allotted to complainant is concerned; it is directed to OP to hand over the possession of unit/apartment (No. 902, 9th Floor, Tower 5B of Parikarma, Sector 20, Panchkula) to complainant within a period of two months from the date of this order. This complaint stands disposed off, in above terms.
20. Application(s) pending, if any stand disposed of in terms of the aforesaid judgment.
21. Copy of this judgment be provided to the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.
22. File be consigned to record room.
Date of pronouncement: 14thJune, 2023
Naresh Katyal
Judicial Member
Addl. Bench-II
