State Consumer Disputes Redressal Commission
J.N.Bakshi vs M/S Vishav Real Estate Pvt. Ltd. on 15 June, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No.128 of 2017
Date of institution : 22.02.2017
Reserved on : 13.06.2017
Date of decision : 15.06.2017
J.N. Bakshi R/o Flat No.125-B, S.B.P. HOMES, Sector 126,
Greater Mohali, Chhajju Majra, Tehsil Kharar, District Mohali.
....Appellant/Complainant
Versus
1. M/s Vishav Real Estate Pvt. Ltd., C/o SBP Group, SCO #
146-148 (First & Second Floor), above HDFC Bank, Sector
43-B, Chandigarh, through its Managing Director.
2. Rakesh Kumar Gupta, Partner/Authorized Person of M/s
Vishav Real Estates Pvt. Ltd., SBP Group, SCO # 146-148
(First and Second Floor), above HDFC Bank, Sector 43-B,
Chandigarh.
3. Ajay Ghakar, Supervisor (Maintenance) of S.B.P. Homes,
Community Centre, Sector 126, Greater Mohali, Chhajju
Majra, Tehsil Kharar, District Mohali.
....Respondents/Opposite Parties
First Appeal against the order dated
17.01.2017 of the District Consumer
Disputes Redressal Forum, S.A.S.
Nagar, Mohali.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mr. Harcharan Singh Guram, Member.
Present:-
For the appellant : Sh. Pankaj Sharma, Advocate For the respondents : Ex parte.
JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT The instant appeal has been filed by the appellant/complainant for modification of the order dated First Appeal No.128 of 2017 2 17.01.2017 passed by District Consumer Disputes Redressal Forum, S.A.S. Nagar, Mohali (in short, "the District Forum"), whereby the complaint filed by him, under Section 12 of the Consumer Protection Act, 1986 (in short, "the Act"), was allowed, by directing the respondents/opposite parties to pay ₹50,000/-, as lump sum compensation for removal of defects and deficiencies in the flat; and ₹25,000/-, as lump sum compensation on account of mental agony and harassment, along with litigation costs, within 45 days of the receipt of copy of the order; failing which the awarded amount was to carry interest at the rate of 9% per annum from the date of decision till realization.
2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Forum.
Facts of the Complaint
3. Brief facts, as averred in the complaint, are that complainant purchased the flat No.125-B, SBP Homes, Sector 126, Chhaju Majra, Mohali, from the opposite parties, vide sale deed dated 16.03.2012, and he is residing in the said flat since 19.04.2012. It was averred that after taking over the possession of the said flat, he found that the construction work was substandard and was not as per the specifications mentioned in brochure. The opposite parties even did not provide the facilities mentioned therein and poor quality material was used in the construction; as a result of which it is not possible for the complainant and his First Appeal No.128 of 2017 3 family to live in the said flat. It was further averred that at the time of signing the possession letter, the representative of the opposite parties assured that if any shortcomings were found in the flat, the same would be rectified within 15 days. However, nothing was done by the opposite parties in this regard. The complainant found the following deficiencies in the flat:
i) Sun Shade slabs on the rear side of the flat are short due to which rainy water enters into the room and kitchen;
ii) the tiles fixed are hollow and white cement was not applied between the gaps;
iii) the rainy water flowing from stairs comes to entrance and also in the room from balcony because the level of tiles is lower than the level of marble fixed in the stairs;
iv) the quality of sewerage and rainy water pipes is very poor and these get leaked when water flows during rain or overflowing of tanks;
v) electrical switches are of very poor quality;
vi) parking space has not been allotted and the area of the complex has been shortened by constructing two extra flats;
vii) no number has been written on the flat; and
viii) The opposite parties constructed two extra flats in the said area, which resulted in shortage of the age in flat.
The opposite parties failed to rectify the defects pointed out by the complainant, despite various requests and complaints. He even issued legal notices to the opposite parties, but to no effect. The First Appeal No.128 of 2017 4 act and conduct of the opposite parties amount to deficiency in service. Accordingly, the complainant approached the District Forum, seeking the following directions to them:
i) to pay ₹85,000/- for the shortcomings pointed out by him;
ii) to pay ₹2,00,000/- for mental and physical harassment; and
iii) to pay ₹15,000/- as counsel fee.
Defence of the Opposite Parties
4. Upon notice, opposite party No.1 appeared before the District Forum and filed reply to the complaint, taking preliminary objections that the complaint has been filed on false and misconceived facts. The complainant has failed to make out a dispute covered under the provisions of the Act. The dispute between the parties is of civil nature, which can be decided by the Civil Court. The complaint is barred by the principles of estoppel, waiver, acquiescence and limitation. It is bad for non-joinder and mis-joinder of party. On merits, it was admitted that the complainant is residing in the flat, in question, which is in his possession since March, 2012. The possession of the same was delivered to the complainant, as per the assurances. The specifications were conceptual and subject to certain modifications, which were duly explained to the complainant. The complainant, along with numerous families, is residing happily and peacefully in the project. The good material, with assured material and features, has been provided in the flat. It was further pleaded that proper parking space has been provided to all the residents, First Appeal No.128 of 2017 5 including the complainant. Other allegations, contained in the complaint, were denied and it was prayed that complaint be dismissed.
5. Opposite party No.2 did not file the reply within the period of 45 days and, as such, its right to file reply was struck, vide order dated 26.02.2016 of the District Forum.
6. Opposite party No.3 initially appeared before the District Forum through counsel, but thereafter, neither any reply was filed nor anyone appeared on its behalf. Thus, OP No.3 was proceeded against ex-parte, vide order dated 28.04.2014. Finding of the District Forum
7. Both the sides produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf, allowed of the complaint, vide impugned order. Dissatisfied with the impugned order, the complainant has come up in this appeal. Contentions of the Parties
8. We have heard learned counsel for the appellant/complainant, as the respondents/opposite parties have not appeared, despite their service and have been proceeded against ex parte. We have also carefully gone through the records of the case.
9. Learned counsel for the appellant/complainant vehemently contended that at the time of entering into the agreement between the parties, it was specifically mentioned that First Appeal No.128 of 2017 6 the complainant would be provided the parking space. A reference has been made to sale deed Ex.C-4, wherein it has been mentioned that the purchaser of the flat has been provided ground floor and car parking area. However, the same was not provided to the complainant, despite repeated requests and demands made by him. The District Forum has allowed the complaint, but the relief regarding car parking was not awarded. The impugned order needs modification to that extent. It was, thus, contended that the appeal be allowed and the impugned order be modified to that extent.
Consideration of Contentions
10. We have given thoughtful consideration to the contentions raised by the learned counsel for the complainant.
11. Admittedly, flat No.125-B, SBP Homes, Sector 126, Greater Mohali, Chhaju Majra, Tehsil Kharar, District Mohali, was purchased by the complainant from the opposite parties. After taking possession of the said flat, the complainant found certain deficiencies in the construction of the same and he had been corresponding with the opposite parties in this regard. The opposite parties failed to rectify the alleged defects and the District Forum has awarded ₹50,000/- on that account, along with compensation of ₹25,000/- for the mental tension and agony suffered by the complainant at their hands.
First Appeal No.128 of 2017 7
12. Now, the only grievance of the complainant in this appeal is that the parking area, as assured at the time of entering into the agreement with the opposite parties, was not provided by the opposite parties, despite the fact that the complainant duly paid for the same. Even no flat number is mentioned on the flat of the complainant. In this regard, the complainant sent letters dated 31.01.2013 and 29.05.2013, Ex.C-8 and Ex.C-9, to the opposite parties, but to no effect. The sale deed, Ex.C-4, of the flat, in question, was executed between the complainant and the opposite parties on 16.03.2012, in which it was specifically mentioned that that the purchaser of the flat was provided ground floor and car parking area. It is also specifically mentioned therein that the vehicle would be parked in the allotted parking only. However, the car parking space has not been provided to the complainant; although it has been admitted that flat No.125-B, First Floor, has been allotted to him. Legal notices dated 17.02.2014, Ex.C-5 and Ex.C-6, were issued to the opposite parties, requesting them to provide the parking area. The non-providing of the covered car parking area, in pursuance to the Brochure Ex.C-1 as well as mentioning of the same in the sale deed, is certainly a deficiency in service on the part of the opposite parties. The complainant has been deprived of his valuable right under the agreement and sale deed executed between them. It was also contended by the learned counsel for the complainant that covered car parking area has been duly provided to other residents of the area, but the First Appeal No.128 of 2017 8 same has been denied to the complainant, for the reasons best known to the opposite parties. Even the number of the flat has not been mentioned on the flat of the complainant. The opposite parties have chosen to remain absent from the proceedings of the appeal in this Commission and there is no reply to the contentions of the complainant. In our view, the complainant is entitled to covered car parking area, as mentioned in the Brochure Ex.C-1 and sale deed Ex.C-4. The impugned order is required to be modified to this extent.
13. Accordingly, the appeal is allowed and the impugned order passed by the District Forum is modified to the extent that in addition to the relief already granted by the District Forum, the opposite parties shall provide the agreed covered car parking area to the complainant, as mentioned in the Brochure Ex.C-1 and sale deed Ex.C-4. The number of the flat of the complainant shall also be specifically mentioned by them at the prescribed place. The order shall be complied with by the opposite parties within a period of 30 days of the receipt of certified copy of the order.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (HARCHARAN SINGH GURAM) MEMBER June 15, 2017.
(Gurmeet S)