State Consumer Disputes Redressal Commission
Mrs. Manveen Grewal vs M/S Aero Homes on 6 December, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
CHANDIGARH.
Consumer Complaint No.151 of 2017
Date of institution : 17.03.2017
Reserved on : 21.11.2017
Date of decision : 06.12.2017
Mrs. Manveen Grewal w/o Brig. D.S. Grewal, # 270, Sector 33-A,
Chandigarh.
.......Complainant
Versus
1. M/s Aero Homes, Gazipur Road, Zirakpur, P.O. Dhakoli,
District Mohali, Punjab through its Partners.
2. M/s NH Matcon through its partner Shri Nitin Bansal c/o M/s
Aero Homes, Gazipur Road, Zirakpur, P.O. Dhakoli, District
Mohali, Punjab.
3. Nitin Bansal, Partner of M/s NH Matcon c/o M/s Aero Homes,
Gazipur Road, Zirakpur, P.O. Dhakoli, District Mohali, Punjab.
........Opposite Parties
Consumer Complaint under Section
17(1)(a)(i) of the Consumer Protection Act,
1986.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mrs. Kiran Sibal, Member
Present:-
For the complainant : Shri Deepak Aggarwal, Advocate. For the opposite parties: Ex parte.
JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT:
The complainant, Manveen Grewal, has filed this complaint under Section 17(1)(a)(i) of the Consumer Protection Act, 1986, for issuance of following directions to the opposite parties:- Consumer Complaint No.151 of 2017 2
a) to offer possession afresh of flat in question, after obtaining completion/occupation certificate from the competent authority and after completion of development works in the project as per the specifications mentioned in the Agreement dated 14.12.2011;
b) to immediately provide to the complainant the promised amenities/facilities as detailed above including covered car parking facility, automated full power back-up, garbage duct, geysers, STP Plant, basic sewerage connection, CCTV cameras, Security Systems etc. in the said apartment in question along with club facility as projected;
c) not to demand from her ₹2,25,000/- towards EEC charges because the same are not part of the Agreement between the parties;
d) not to demand from the complainant service tax of ₹27,810/-
because the same cannot be demanded as per law;
e) not to demand from her, club membership charges of ₹60,000/-, as no club has been constructed by the opposite parties;
f) to obtain completion certificate from the competent authority and till the said certificate is obtained by them, they should be ordered to pay ₹8,800/- per month, as penalty, which comes to ₹3,78,400/- upto February 2017 and the opposite parties be directed to refund ₹86,250/-, which have been wrongly charged by them as service tax from the complainant in March 2015 with interest upto date in view of Consumer Complaint No.151 of 2017 3 the judgment passed by Hon'ble National Commission in the case titled as "Pradeep Chowdhry & Anr. vs. Unitech Ltd. & Anr." Consumer Case No.222 of 2014, decided on 19th of October 2016;
g) not to charge any maintenance charges till one year after the completion certificate is granted to them;
h) to carry out necessary repairs to stop the leakage and seepages in the walls immediately and to repair or replace the defective materials and to bring the flat upto the mark as per the specifications mentioned in the agreement dated 14.12.2011 and also as per sample flat which was shown to him at the time of booking;
i) to provide/construct the garbage duct, as promised;
j) to pay her a total sum of ₹10,00,000/- as compensation for the physical and mental harassment caused to her; and
k) to pay a sum of ₹20,000/- as costs of litigation. Facts of the complaint:
2. Brief facts, as averred in the complaint, are that on various commitments, assurances and projections made by the opposite parties the complainant applied for allotment of a three bedroom Flat measuring 1760 square feet, vide application dated 11.12.2011. The complainant had entered into an Agreement for buying an apartment in the project named "Aero Homes' situated in Village Ghazipur in Zirakpur. Accordingly the complainant was allotted Apartment No.F- 601 in the said Project for a sum of ₹28,00,000/- approximately to be paid as per the payment plan with an assurance that the possession Consumer Complaint No.151 of 2017 4 of apartment would be delivered on or before 30.6.2013. In the brochure, agreement as well as in the advertisement published by the opposite parties, it was promised that an excellent structure would be provided with best quality fittings. As per the terms and conditions, the opposite parties were liable to pay ₹8,800/- per month as penalty in case of delayed delivery of possession beyond 30th of June 2013. In order to escape from its above said financial liabilities arising out of the delayed offer of possession, the opposite parties offered paper possession without completion of development works; without obtaining completion certificate from the competent authority; and without sewerage connection to the complainant, vide letter dated 28.6.2013, which are the pre-requisites for issuing offer of possession as per the Punjab Apartment and Property Regulation Act, 1995 (in short, "PAPRA"). This information was sought under the RTI Act, 2005 from Municipal Corporation, Zirakpur and the same was provided, vide letter dated 18.12.2015 confirming non-
issuance of "Completion Certificate" and "Sewerage Connection"
upto 15.1.2016. It is further averred that when the complainant visited the "Aero Homes" premises on 19th of July 2013 to take the possession of the much awaited apartment, to her utter dismay, it was found that the flat was nowhere near completion. There was no electricity and sewerage connection, no working lifts, no inside roads, no park, no club etc. and the entire complex was in under- construction state with lots of potential threat to human lives. The opposite parties also raised some irrational demands for payments like External Electricity Charges (EEC) etc. apart from deliberately Consumer Complaint No.151 of 2017 5 inflating the Service Tax and other heads in the above said offer of possession. It is further averred that ₹2,25,000/- demanded for the EEC charges along with service tax of ₹27,810/- are invalid demands by the opposite parties. The amount of ₹60,000/- demanded for the club membership is also invalid as no club has been constructed by the opposite parties. The complainant kept on writing letters/e-mails to the opposite parties asking for proof of the flat being complete and various documents/certificates but they did not deem it fit to reply to any of the letters and notices. The said offer of possession cannot be said to be effective possession because the opposite parties have not yet received any "Completion Certificate' and 'Sewerage Connection' from the competent authorities, which is against the provisions of the PAPRA. Even the basic common amenities were missing or are of very poor standards, and as such making the overall living scenario at Aero Homes very difficult and disgusting for all the residing flat owners. No action has been taken in the said matter by the opposite parties and the allottees are constantly suffering because of the incomplete work, poor workmanship and the poor quality material used by them inside the apartment as well as in the common area of the Aero Homes Complex. Even till the date of filing of the complaint the electricity wires were lying around or hanging loose and other building material are also lying around loose. All such things made the Society a hazardous place to live in. Kitchen, cupboards, wooden doors and bathroom fittings along with the structure are of much inferior quality and facilities than shown in the sample flat. 80% green area was Consumer Complaint No.151 of 2017 6 promised in the advertisement, which has been reduced to less than 40%. Moreover, as per the advertisement, every flat was supposed to be park facing which is not at all in the case of complainant. Leakage and seepage problems are also there and despite repeated requests, problems still persist. It is further averred that as per the advertisement and brochure the opposite parties promised to provide High-Tech Security including installation of CCTV cameras, Video Door Phones with connectivity at main gate and Two-tier Personnel Security Guards 24X7. Separate washroom facility was also promised for maids and drivers in the Society but this has also not been made available. It is further averred that at the time of offer of alleged possession the construction of the club was not started and apart from the club they are also required to provide Swimming Pool, Gymnasium along with Conference Room as per the Agreement. It is further averred that the opposite parties very cleverly and without any authority, Rules and Regulations have sold the roof rights to some of the flat owners. Thus, depriving the other fellow flat owners of their inherent rights of use of roof tops. As per the advertisement the opposite parties were to provide garbage ducts in the building. However, after promising the same the opposite parties either changed the design or deliberately did not construct the said garbage ducts and thus the complainant has been robbed of her heard earned money. Following the protest lodged by a sizeable group of flat owners of Aero Homes and after the intervention of Municipal Corporation, Zirakpur, the opposite parties have allotted the covered parking space at the ground floor of Tower-F to the Consumer Complaint No.151 of 2017 7 allottees under the confirmation of same to MC, Zirakpur vide letter dated 16.12.2014. But despite the repeated requests, individual parking allotment letter against the referred allotted parking space is still pending with the opposite parties. The opposite parties have also charged service tax but the same has not been deposited by them with the Government. Moreover, no service tax can be charged by the builders in such cases and the provision in this regard has been declared illegal and ultra vires. Reference was made to the judgment of the Hon'ble National Commission in "Pradeep Chowdhary and Anr. vs. Unitech Ltd. & Anr." Consumer Case No.222 of 2014 decided on 19.10.2016. The opposite parties have charged ₹86,250/-, as service tax from the complainant in March 2015 and they are bound to refund the same with interest upto date. These acts of the opposite parties caused mental pain and harassment to the complainant and amount to deficiency in service and adoption of unfair trade practice on their part. Hence this complaint for issuance of the aforementioned directions to the opposite parties.
3. Notices were issued to the opposite parties for appearance on 30.3.2017. However the same were received back with the report "office closed". Thereafter the complainant moved an application for substituted service, which was allowed and the notice was published in the newspaper. However, despite service none put in appearance on behalf of the opposite parties and as such, they were proceeded against ex parte, vide order dated 14.9.2017.Consumer Complaint No.151 of 2017 8
Evidence of the Complainant:
4. In order to prove her case, the complainant produced on record her affidavit Ex.CA and documents Ex.C-1 to Ex.C-7, Ex.C-
7(A), Ex.C-8(A) to Ex.C-8(E), Ex.C-9, Ex.C-10, Ex.C-10(A) to Ex.C- 10(L), Ex.C-11, Ex.C-11(A) to Ex.C-11(D) and Ex.C-12 to Ex.C-14 in her ex-parte evidence.
5. We have carefully gone through the averments of the complainant and the evidence produced by her in support of those averments. We have also heard learned counsel for the complainant.
Contentions of the Complainant:
6. Learned counsel for the complainant argued on the same lines as averred in the complaint. It was further argued that the main grievance of the complainant is that she had paid the substantial amount towards the total sale consideration of the flat, in question, but the opposite parties are not offering the possession of the flat in question, complete in all respects. The complainant is ready and willing to pay any amount, which may be payable but she cannot be made to wait for indefinite period for delivery of possession. It was further argued that the possession was to be delivered by 30.6.2013 and almost four years have already elapsed till date. In view of this, it is prayed that a direction may be issued to the opposite parties to deliver the possession and also to pay compensation for the delay in delivery of possession; in addition to the directions mentioned in the complaint.
Consumer Complaint No.151 of 2017 9Consideration of Contentions:
7. We have given our thoughtful consideration to the contentions raised by the learned counsel for the complainant.
8. All the allegations of the complaint have been supported by the affidavit of the complainant Ex.C-A, which has been supported by documentary evidence mentioned above. Admittedly the complainant made an application form for allotment of Flat in Aero Homes on 11.12.2011, Ex.C-1 and she was allotted Flat No.601, 6th Floor, Tower F, measuring 1760 square feet for a total cost of ₹28,60,000/- (₹28,00,000/- as the Basic Price + ₹60,000/- as Club Fee), vide allotment letter dated 13.12.2011, Ex.C-2. It has also been admitted in the allotment letter that the total amount of ₹26,25,000/- paid by the complainant has been adjusted into total price of the flat and that the balance will be paid at the time of Notice of possession. It has also been mentioned that the physical possession of the Flat shall be handed over to the buyer upto 30.6.2013 subject to Force Majeure clause incorporated universally only after full payment is made to the Promoter as per the terms and conditions set out in the Agreement. Thereafter Agreement to Sell dated 14.12.2011 Ex.C-3 was entered into between the complainant and the opposite parties mentioning detailed terms and conditions of the allotment of the flat in question. The total sale consideration of the flat in question was mentioned as ₹28,60,000/- and the payment of ₹26,25,000/- at the time of booking of the flat has also been mentioned. As per clause 4(a)(i) of the Agreement to Sell, possession of the Apartment was proposed to be delivered by the Consumer Complaint No.151 of 2017 10 opposite parties by 30.6.2013 subject to force majeure circumstances beyond their control. As per clause 4(a)(ii) thereof, in the event of any delay in handing over the physical possession of the apartment by the Developer, the Developer shall compensate the complainant by paying interest worked out at ₹5/- per square feet counted per month, which comes to ₹8,800/- per month for the period of delay in handing over the possession on the amount paid by the purchaser. Admittedly, the possession was not delivered within the above said agreed period. The opposite parties have remained absent from the proceedings of the complaint and, thus, there is no evidence on record to show any force majeure circumstances or reasons beyond their control to hand over the possession of the allotted flat. The complainant in all deposited ₹26,25,000/- with the opposite parties. From the evidence produced by the complainant, it stands proved that the possession was not delivered to her by the agreed date.
9. The whole purpose of pleadings is to give fair notice to each party of what the opponent's case is and to ascertain with precision the point(s) on which the parties argue and those on which they differ. The purpose is to eradicate irrelevancy. The complaint is a concise statement of facts and if no reply is filed to the complaint, the averments made therein are deemed to have been admitted. No amount of evidence can be looked into upon a plea, which was never put forward in pleadings. A party cannot adduce evidence and set case inconsistent to the pleadings. No amount of proof can substitute pleadings, which are the foundation of the claim of the Consumer Complaint No.151 of 2017 11 parties. When there is no pleading, the party is precluded from adducing evidence. In the present case, the opposite parties have not appeared, despite service and were proceeded against ex parte. As such, the evidence adduced by the complainant remains unrebutted.
10. It stands proved that the opposite parties failed to hand over the possession of the flat, in question, to the complainant within the stipulated period, without any sufficient reason. The amount paid by the complainant is a deposit held by the opposite parties, in trust of complainant and it should be used for the purpose of building the plots/flats, as mentioned in Section 9 of the Punjab Apartment and Property Regulation Act, 1995 (hereinafter to be referred as the "PAPRA"). The builder is bound to compensate for the loss and injury suffered by the complainant for failure to deliver the possession, so has been held in catena of judgments by the Hon'ble Supreme Court and the Hon'ble National Commission. To get the relief, the complainant has to wage a long drawn and tedious legal battle. As such, the complainant was at loss of opportunities. In such circumstances, ever increasing cost of construction and the damages for loss of opportunities caused which resulted in injury to the complainant, are also required to be taken into consideration for awarding compensation. In addition to that she is also entitled to the compensation for the harassment, mental agony and wasting of time and money in litigation for redressal of grievance suffered by her on account of the betrayal by the opposite parties in shattering her hope of getting the flat by waiting for all this period. In these Consumer Complaint No.151 of 2017 12 circumstances, the complainant is held entitled to delivery of possession of the flat, in question, along with penalty, as per clause 4(a)(ii) of the Agreement to Sell, Ex.C-3.
11. So far as the payment of service tax is concerned, we are of the view that the same has been rightly charged by the opposite parties because it has been specifically mentioned in clause 5(k) of the Agreement Ex.C-3 that the service tax or any other future taxes shall be borne and paid by the purchaser and the complainant put her signatures on the same. Moreover, the same was not kept by the opposite parties with them and deposited the same with the Government as per Rules.
12. So far as the demand of ₹2,25,000/- towards EEC charges is concerned, the same are agreed in clause 5(d) (iv) of the Agreement and as such, the complainant is liable to pay the same.
13. So far as the demand of Club Membership Charges of ₹60,000/- is concerned. Admittedly the same have been mentioned in the Agreement to Sell, Ex.C-3, but since no Club has been constructed so far by the opposite parties, therefore, they cannot demand this amount from the complainant. However, the opposite parties may raise the demand after construction of the Club and if she does not deposits the same, her membership may be cancelled by the opposite parties. Similarly the opposite parties are not liable to charge maintenance charges till the delivery of actual physical possession of the flat in question, complete in all respects.
14. So far as repairs to stop the leakage and seepages in the walls and the construction of garbage duct are concerned, the opposite Consumer Complaint No.151 of 2017 13 parties are bound to do the same as promised in the Agreement to Sell, Ex.C-3.
15. In view of our above discussion, the complaint is allowed and the following directions are issued to the opposite parties:
i) to deliver physical and legal possession of the flat, in question, complete in all respects, along with all promised amenities/facilities and Completion Certificate, subject to payment of remaining amount, if any, by the complainant;
ii) to pay penalty ₹5/- per square foot per month i.e. ₹8,800/- per month for the delay in delivering the possession of the flat, in question, as per Clause 4(a)(ii) of the Agreement to Sell, Ex.C3, with effect from 1.7.2013 till the date of delivery of actual physical possession;
iii) not to demand Club Membership Charges of ₹60,000/- from her;
iv) not to charge any maintenance charges till the date of delivery of actual physical possession of the flat in question;
v) to carry out necessary repairs to stop leakage and seepages in the walls in order to bring the flat upto the mark as per the specifications mentioned in the Agreement to Sell, Ex.C-3;
vi) to provide/construct the garbage duct as promised; and
vii) to pay ₹55,000/- as consolidated amount on account of compensation for physical and mental harassment including costs of the complaint.
16. The opposite parties shall comply with this order within a period of two months of the receipt of the certified copy of the same, Consumer Complaint No.151 of 2017 14 failing which the penalty amount shall carry interest at the rate of 9% per annum from the date of this order till realization thereof.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (MRS. KIRAN SIBAL) MEMBER December 06, 2017 Bansal