State Consumer Disputes Redressal Commission
Jagjir Kaur Dhillon vs Ansal Lotus Melange Projects Pvt. Ltd. on 22 January, 2018
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
1) Misc. Application No.1577 of 2017
In/and
Consumer Complaint No.586 of 2017
Date of institution : 20.07.2017
Reserved On : 10.01.2018
Date of decision : 22.01.2018
1. Jagjit Kaur Dhillon W/o Sh. Massa Singh Dhillon;
2. Fatehjit Singh Dhillon S/o Massa Singh Dhillon;
Both residents of H.No.24-A, Greater Kailash, Batala, District
Gurdaspur. Presently residing at Flat No.2, Top Floor, Palm
Grove, Sec-115, Mohali.
....Complainants
Versus
Ansal Lotus Melange Projects Pvt. Ltd., SCO No.183-184, Sector 9C,
Chandigarh, through its Sr. Executive, Sales & Marketing, namely Ms.
Nidhi Manchanda.
....Opposite Party
2) Misc. Application No.1578 of 2017
In/and
Consumer Complaint No.587 of 2017
Date of institution : 20.07.2017
Reserved On : 10.01.2018
Date of decision : 22.01.2018
1. Narinder Pal Singh Rekhi;
2. Himdeep Singh;
Both residents of House No.4139, Sector 68, S.A.S. Nagar,
Mohali.
....Complainants
Versus
Ansal Lotus Melange Projects Pvt. Ltd., SCO No.183-184, Sector 9C,
Madhya Marg, Chandigarh.
....Opposite Party
Consumer Complaint No.586 of 2017 2
Consumer Complaints under Section 17 of
the Consumer Protection Act, 1986.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mrs. Kiran Sibal, Member.
Present:-
For the complainants : Sh. Snehdip Oberoi, Advocate For the opposite party : Sh. Rachit Kaushal, Advocate. JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT :
This order will dispose of above mentioned two (2) Consumer Complaints filed by the complainants, under Section 17 of the Consumer Protection Act, 1986 (in short, "the Act"), as the facts and the questions of law involved in these complaints are the same and both the complaints have been filed against the same opposite party by the complainants. The facts are taken from Consumer Complaint No.586 of 2017.
Consumer Complaint No.586 of 2017 Misc. Application No.1577 of 2017 In view of Possession Letter, Ex.C-4, as well as the admission of the opposite party in its the reply, the complainants are admitted to be joint owners of the flat, in question. Thus, the application is allowed.
Main Case The complainants have filed this complaint, under Section 17 of the Act, seeking following directions to the opposite party: Consumer Complaint No.586 of 2017 3
i) to refund the sum ₹2,85,543/- charged on account of alleged increase in super area of the flat, in question;
ii) to pay ₹60,000/- on account of car parking;
iii) to pay ₹25,000/- as IFMS charges;
iv) to provide 60% space on top floor for the exclusive use and
occupation of the complainants; and
v) to pay ₹1,00,000/-, on account of mental agony and harassment
suffered by the complainants;
Brief facts, as set out in the complaint, are that the opposite party advertised in various newspapers with regard to the construction and allotment of luxurious residential apartments in the proposed 'Palm Grove Apartments' in Sector 115, Mohali, with an assured possession within 24 months from the date of booking. One Devinder Singh S/o Sh. Rupdaman Singh R/o House No.208, Bhogal Niwas, Basant Colony, Sahil Road, Pathankot, District Gurdaspur, had booked one flat, vide application dated 07.07.2009, and he was allotted Flat No.2, Top Floor, in the said complex. As per the contents of the Allotment Letter, the super built up area of the flat was 1525 sq.ft. and the rate fixed was ₹2098.36 per sq.ft. and the total price of the flat was ₹32,00,000/-. The above said original allottee sold the flat, in question, to the complainants and the opposite party transferred the ownership thereof in their names, after charging transfer fee of ₹33,708/-, vide receipt dated 28.09.2012. In this way, the complainants stepped into the shoes of original allottee, with regard to the ownership of the flat, in question. It was averred that the complainants were offered Consumer Complaint No.586 of 2017 4 possession, vide letter dated 23.10.2012, wherein super built up area of the flat, in question, was mentioned as 1657 sq.ft. instead of 1525 sq.ft., as mentioned in the Allotment Letter. The opposite party issued Statement of Account, showing the additional demand of ₹2,76,984/-, along with ₹8,559/- as Service Tax on account of enhanced super area. In addition to it, the opposite party also charged ₹60,000/- from the complainants towards open car parking charges and ₹25,000/-, as "Interest Free Maintenance and Security Charges". The possession of the flat, in question, was given to the complainants on 06.11.2012, while it was delivered on 24.06.2011. However, the Sale Deed of the flat, in question, was not executed by the opposite party, despite repeated reminders issued by the complainants. Later on, it transpired that the said land was not registered in the name of the opposite party.
Furthermore, the possession of the flat was handed over to the complainants, without proper civic amenities, as assured. There are no proper roads and lifts. The quality of construction is sub-standard, as there is water seepage on the walls and wooden flooring is decaying. The promised amenities, such as club, tennis court, badminton court, basketball ground, swimming pool, central park, jogging park etc. have also not been provided so far. The complainants, time and again, requested the opposite party to explain the reasons of increase in super area of the flat, for which additional amount has been charged from them and which they have paid in good faith at the time of offer of possession. However, the opposite party failed to redress their grievances, even despite issuance of letters dated 29.08.2014 and Consumer Complaint No.586 of 2017 5 12.01.2015. Ultimately, the complainants served Legal Notice dated 07.07.2015 upon the opposite party, through Registered Post; to which no reply was received. The aforesaid act and conduct of the opposite party amounted to deficiency in service and unfair trade practice, which caused mental pain and agony to the complainants. It was further averred that initially, the complainants filed complaint before District Forum, Chandigarh on 26.08.2015, in which written statement was filed on behalf of the opposite party. Thereafter, the complainants filed an application for appointment of an independent Architect, as a Local Commissioner, and reply thereto was also filed by the opposite party and the case was fixed for consideration on that application. However, in view of the judgment of the Hon'ble National Commission dated 07.10.2016 rendered in Ambrish Kumar Shukla & 21 Ors. v. Ferrous Infrastructure Pvt. Ltd., the said complaint was dismissed as withdrawn, with liberty to them to file fresh complaint on the same particulars before the appropriate Forum. Hence, this complaint. Defence of the Opposite Party
2. Upon notice, the opposite party appeared and filed reply to the complaint, raising certain preliminary objections that the complainants indulged in material concealment of facts. No cause of action accrued in their favour to file this complaint. They duly accepted the terms and conditions mentioned in the Allotment Letter, without any demur or protest, at the time of transfer of the allotted unit in their names in the year 2012 and appended their signatures on each page of the Allotment Letter. Thus, they cannot be allowed to file the Consumer Complaint No.586 of 2017 6 complaint after 5 years thereafter. In fact, Apartment No.2, TF in Block- Tower No.2 in "Palm Grove", having a super area of 1525 sq.ft., was initially allotted in favour of one Devinder Singh, vide Allotment Letter dated 24.06.2009. The complainants, at the time of seeking transfer of the allotted unit in their names, had tendered a duly sworn affidavit dated 09.09.2012 and in Para-2 thereof, they undertook to be bound by all the terms and conditions of the Allotment Letter, being the nominees of the original allottee. Vide letter dated 04.10.2012, the flat, in question, was formally transferred in the names of the complainants on receipt of transfer charges, along with applicable Service Tax. The complaint is time barred, in view of the fact that subsequent to the offer of possession of the allotted unit, its possession, complete in all respects, was admittedly taken over by the complainants on 06.11.2012. Prior to taking over of possession, all the requisite charges, demanded in terms of the Allotment Letter, were paid by the complainants without any demur or protest. The complainants filed complaint No.469 of 2015 before District Forum-II, U.T., Chandigarh in August, 2015, i.e. beyond the statutory period of limitation of two years, as prescribed under Section 24-A of the Act. The said complaint was dismissed as withdrawn, vide order dated 30.12.2016. Subsequently, the complainants agitated their claim before the State Consumer Disputes Redressal Commission, U.T., Chandigarh in CC No.341 of 2017, which was also dismissed as withdrawn, vide order dated 24.04.2017; in which it was observed by the State Commission that it was not inclined to interfere at that stage. It is, thus, evident that the Consumer Complaint No.586 of 2017 7 complainants indulged in Forum shopping and they are not entitled to any relief. The present complaint has been filed after 8 years from the date of Allotment Letter, which cannot be entertained at the belated stage. On merits, it was pleaded that the increase in the super area of the flat, in question, was strictly, in accordance with the terms and conditions of the Allotment Letter. The possession was offered on 23.10.2012, upon not only completing the construction of the allotted flat in all respects, but also by providing the facilities and amenities, as provided in the Allotment Letter. As per Clause 10 of the Allotment Letter, the possession of the flat was to be given within a period of 34 months, subject to force majeure circumstances, and on payment of outstanding payments by the allottee. The allottee was liable to pay holding charges at the rate of ₹5/- per sq.ft. per month, if he failed to take possession within 30 days from the date of offer thereof. It was further pleaded that the super area of the flat, in question, has been increased by 132 sq.ft., which is within the permissible limit i.e. 10% of the total area of the flat, as per terms and conditions of the Allotment Letter. After enhancement, the total built up area came to 1657.441 sq.ft. The Service Charges have been taken from the complainants, in accordance with law, after dividing the same into other residents of the area. Details of basic area, increased area as well as calculations have been given on Pages 13 to 16 of the reply. The increase in the area has been approved by the competent authority on the basis of measurement book sheets prepared by the Architect. Parking and maintenance charges have been charged, in terms of the Allotment Consumer Complaint No.586 of 2017 8 Letter. It was denied that the said land is not in the name of the opposite party. It was further pleaded that after taking the possession of the flat, in question, now the complainants cannot claim that they were not aware of the proceedings, which had already commenced in pursuance of Allotment Letter. No letter or legal notice was received by the opposite party from the side of the complainants. Other allegations of the complaint have been denied and it was prayed that the complaint be dismissed.
Evidence of the Parties
3. To prove their claim, the complainants tendered affidavit of complainant No.2 as Ex.CA, along with documents Ex.C-1 to Ex.C-12.
4. The opposite party failed to lead any evidence, despite availing sufficient opportunities. Even cost of ₹1,000/- was imposed upon it, vide order 04.12.2017, but even then it failed to lead any evidence or to pay the costs. Thus, the defence of the opposite party was struck off, vide order dated 21.12.2017.
Contentions of the Parties
5. We have heard learned counsel for the parties and have gone through the record carefully.
6. Learned counsel for the complainants vehemently contended that the opposite party increased the super area of the flat, in question, without the consent of the complainant or issuing any notice to him. Initially, the area of the flat, in question, was 1525 sq.ft., as is evident from Allotment Letter, Ex.C-2, which has been subsequently increased to 1657 sq.ft., as mentioned in Statement of Consumer Complaint No.586 of 2017 9 Account, Ex.C-5. Thus, there was increase of 132 sq.ft. in the total area of the said flat. It was further contended that the complainants got measured the area of the flat from the competent Architect, who vide his report, Ex.C-12, has calculated the total area of the said flat as 1587.291 sq.ft. Even if the said increase in the area is taken into consideration, then the complainants could have been charged only for 62.291 sq.ft. area which was actually increased, but the opposite parties have wrongly and excessively charged the complainants by taking the increase of 132 sq.ft. Learned counsel further contended that the area cannot be increased, in view of Section 11 of Punjab Apartment and Property Regulation Act, 1995 (in short, "PAPRA"), without the consent of the allottee. Identical situation arose in M/s G.G. Associates & 2 Ors. v. Commodore Ravindra Kumar Narad & Anr. Revision Petition No.1647 of 2014 decided on 16.10.2014 by the Hon'ble National Commission, in which it was held that the builder cannot affect changes in the area of the building without the consent of the allottee. It was further contended that car parking and IFMS charges are also not chargeable from the complainants. The opposite party failed to produce any evidence in support of its pleadings, despite availing sufficient number of opportunities and its defence was struck off. The opposite party committed deficiency in service by increasing the area of the flat, without the consent of the complainants. Hence, the complaint is liable to be allowed and all the directions, as prayed for therein, are liable to be issued to the opposite party. Consumer Complaint No.586 of 2017 10
7. Per contra, learned counsel for the opposite party vehemently contended that the area of the flat, in question, has been increased, in accordance with the Clause-8 of the Allotment Letter, Ex.C-2. Moreover, the increased area is not more than 10% of the total area of the flat. Increase and decrease in the area of the property is possible, keeping in view the circumstances at the time of delivery of actual possession thereof. At the time of allotment, the area of the property/flat is always tentative. It was, thus, contended that no illegality was committed while increasing the area and receiving the due charges on account thereof and there is no deficiency in service on the part of the opposite party. The complaint is liable to be dismissed.
Consideration of Contentions
8. We have given our thoughtful consideration to the rival contentions of the parties.
9. The present complaint is a case of unrebutted evidence. In the present case, the opposite party failed to lead any evidence to rebut the evidence led by the complainant, despite availing sufficient number of opportunities and, therefore, its defence was struck off. As such, the evidence adduced by the complainants remains unrebutted.
10. Admittedly, the flat, in question, was originally allotted in the name of Sh. Devinder Singh, vide Allotment Letter dated 24.06.2009, Ex.C-2, wherein the area of the flat was mentioned as 1525 sq.ft. (141.69 sq.meters) and the rate per sq.ft. has been shown as ₹2,098.36P. The total cost thereof was shown as ₹32,00,000/-. The Consumer Complaint No.586 of 2017 11 said flat was sold by its original allottee to the complainants, as is evident from Receipt dated 28.09.2012, Ex.C-3; wherein the transfer charges are mentioned as ₹30,000/-, along with Service Tax of ₹3,708/-. The possession of the flat, in question, was delivered to the complainants, vide Possession Letter dated 06.11.2012, Ex.C-4. The opposite party issued the Statement of Account, Ex.C-5, wherein it is mentioned that the area of the unit at the time of possession was 1657 sq.ft. As per that Statement of Account, the opposite party raised additional demand of ₹2,76,984/- towards increase in the area and ₹8,559/- towards Service Tax. A sum of ₹60,000/- has been shown in the column of inclusive car parking and club membership. There is no dispute with regard to payment of the entire price of the flat, including increased area, in question, between the parties. The only dispute is with regard to charging of additional amount towards the increase in the area of the flat, in question. As per the version of the opposite party, there was total increase of 132 sq.ft. in the area of the flat, for which it charged the above said amount from the complainants.
11. To make the situation clear, the complainants got measured/examined the total area of the flat, in question, from Sh. Kamaldeep Singh, Architect, Planner and Interior Designer, who made thorough examination and measurement of the area, in question, and gave his report, Ex.C-12; which is duly supported by site plans of different parts of the said flat. In his report, he found the total super built up area of the flat, in question, as 1587.291 sq.ft. Thus, as per this report, the total increase in the area of the flat, in question, comes to Consumer Complaint No.586 of 2017 12 62.291 sq.ft.(1587.291 sq.ft. minus 1525 sq.ft.) and not 132 sq.ft., as alleged by the opposite party in its reply. The opposite party charged the above amount of ₹2,76,984/- towards increase in the area and ₹8,559/- towards Service Tax, keeping in view the alleged increase of 132 sq.ft. in the area of the flat, but the said plea of the opposite party stands duly rebutted by the above report of the Architect. The opposite party has not led any evidence to rebut the report of the Architect tendered by the complainant. No doubt, as per Clause-8 of the Allotment Letter, the allottee agreed that the Company may affect variations, additions, alterations, deletions and modifications in the flat, but we are of the view that even if the said increase in the area is taken into consideration, even then the complainants could have been charged only for 62.291 sq.ft. area which was actually increased and not beyond that. The excess amount received by the opposite parties towards the increase in the area is liable to be refunded to the complainants. In this manner, the opposite party is liable to refund ₹1,46,274.57P (1657 sq.ft. minus 1587.291 sq.ft. multiply by ₹2098.36 per sq.ft.) to the complainants towards the excess amount received by it towards the excess area of the flat, in question, than the available area at the spot, as per above report of the Architect. They are also entitled to pay interest at the rate of 12% on the said amount from the date of deposit of the additional charges for increase in the area of the flat, in question, till realization.
12. So far as the objection of the opposite party that the complaint is time barred is concerned, it is relevant to mention that Consumer Complaint No.586 of 2017 13 after taking possession of the flat, in question, the complainants had been writing letters to the opposite parties regarding charging of additional amount for increase in the area of the flat. They also issued legal notice dated 07.07.2015, Ex.C-8, to the opposite party in this regard. Thereafter, they filed Consumer Complaint No.469 of 2015 before District Forum-II, U.T. Chandigarh, which was dismissed as withdrawn, vide order dated 30.12.2016, Ex.C-10, in view of the judgment of the Hon'ble National Commission rendered in Ambrish Kumar Shukla's case. Thereafter, the complainants filed CC No.341 of 2017 before the State Consumer Disputes Redressal Commission, U.T., Chandigarh, which was also dismissed as withdrawn, vide order dated 24.04.2017, Ex.C-11. Thereafter, the present complaint was filed in July, 2017. Thus, it cannot be said that the present complaint is time barred.
13. So far as the car parking charges of ₹60,000/- are concerned, the same are chargeable by the opposite party, as per Clause-3 of the Allotment Letter, Ex.C-2, which envisages that the allottee shall also make payment of Car Parking Space provided by the Company, as per Schedule-I. Thus, the complainants are not entitled to the refund of car parking charges.
14. So far as IFMS charges are concerned, the same are payable by the complainants, as per Clause-24 of the Allotment Letter, by which the allottee duly agreed to pay the said charges to the Company.
Consumer Complaint No.586 of 2017 14
15. So far as the prayer of the complainants to provide them 60% space on top floor for their exclusive use and occupation is concerned, there is no such Clause in the Allotment Letter, providing 60% exclusive space for the complainants. However, as per Clause-23 of the Allotment Letter, the allottees shall have right to use and enjoy the terrace above the top floor of apartment building (s), subject to necessary means of access to be permitted to the other allottees for such purposes, so as to reach the water tank and lift room of the building(s). The allottee of such terraces shall be entitled to make use of the same for such purposes, as may be permitted by the Company.
16. In view of our above discussion, the complaint is partly allowed and following directions are issued to the opposite party:
i) to refund the sum of ₹1,46,274.57P, along with interest at the rate of 12% from the date of deposit of the additional charges for increase in the area of the flat, in question, till realization; and
ii) to pay ₹20,000/-, as compensation on account of the mental agony and harassment suffered by the complainants as well as litigation expenses.
Consumer Complaint No.587 of 2017 Misc. Application No.1578 of 2017
17. The complainants being joint owners of the flat, in question, the application is allowed.
Main Case
18. Similarly, in Consumer Complaint No.587 of 2017 (Narinder Pal Singh Rekhi & Anr. v. Ansal Lotus Melange Projects Consumer Complaint No.586 of 2017 15 Pvt. Ltd.), the complainants were allotted flat No.7, First Floor, vide Allotment Letter dated 02.07.2009, Ex.C-2; in which the super built area of the flat was mentioned as 1525 sq.ft. and rate per sq.ft. was mentioned as ₹2,098.36P. The total price of the flat was fixed as ₹32,00,000/-. The opposite party informed the complainants that super built area of the flat had been increased from 1525 sq.ft. to 1657 sq.ft.; for which an additional amount of ₹2,76,983/-, along with ₹8,559/- as Service Tax, was to be paid by them. The possession of the flat was to be given only after the deposit of the above said additional amounts. Accordingly, the complainants paid the said amounts in good faith, vide receipt Ex.C-4. However, the possession of the flat was given to the complainants, without proper infrastructure, as there is no sufficient parking space in front of the flat. Quality of construction is sub- standard, as there is seepage on the walls and wooden flooring is decaying. Moreover, the promised facilities, as mentioned above, have also not been provided. The complainants wrote letters dated 18.06.2014 and 25.05.2015, Ex.C-5 and Ex.C-6, lodging protest against the charging of above additional amount towards increase in the area of the flat. They also issued legal notice dated 10.02.2016, Ex.C-7, to the opposite party seeking refund of the excess amount. The complainants initially filed complaint against the opposite party before District Forum, U.T. Chandigarh on 07.06.2016, which was dismissed as withdrawn, vide order dated 08.12.2016, with liberty to file fresh complaint before the appropriate Forum. Thereafter, the complainant filed complaint (CC/340/2017) before the State Consumer Consumer Complaint No.586 of 2017 16 Disputes Redressal Commission, U.T. Chandigarh, which was also dismissed as withdrawn, as per order Ex.C-9. Thus, by way of this complaint, the complainants sought following directions to the opposite party:
i) to refund the amount of ₹2,85,542/- charged on account of alleged increase in super built area of the flat, in question, along with interest at the rate of 18% per annum from the date of payment till realization;
ii) to provide all the civil amenities, as promised in the Allotment Letter; and
iii) to pay ₹1,00,000/-, as compensation on account of mental agony and harassment suffered by the complainants.
19. The opposite party filed reply, on the similar lines of its reply, as given in above complaint.
20. The complainants tendered in evidence affidavit of complainant No.1 as Ex.CA, along with documents Ex.C-1 to Ex.C-10.
21. The opposite party failed to lead any evidence, despite availing sufficient opportunities. Even cost of ₹1,000/- was imposed upon it, vide order 04.12.2017, but even then it failed to lead any evidence or to pay the costs. Thus, the defence of the opposite party was struck off, vide order dated 21.12.2017.
22. In this case, initially the area of the flat, in question, allotted to the complainants was 1525 sq.ft., as is evident from Allotment Letter, Ex.C-2. The same was increased to 1657 sq.ft. as per Statement of Account, Ex.C-3, and the additional amount of Consumer Complaint No.586 of 2017 17 ₹2,76,983/- for the said increase in the area of the flat, along with Service Tax of ₹8,559/-, was got deposited from the complainants, vide receipt Ex.C-4. The complainants got measured/examined the entire area of the flat, in question, from Sh. Kamaldeep Singh, Architect, who submitted his report, Ex.C-10; in which he calculated the Super Area of the flat, in question, as 1587.291 sq.ft. The opposite party charged the complainants, taking the increased area by 132 sq.ft.; whereas, it was entitled to charge for the actually increased area of 62.291 sq.ft. Thus, the excess amount received by the opposite party is liable to be refunded to the complainants, along with interest. Therefore, opposite party is liable to refund ₹1,46,274.57P (1657 sq.ft. minus 1587.291 sq.ft. multiply by ₹2098.36 per sq.ft.) to the complainants towards the excess amount received by it towards area of the flat, in question, than the available area at the spot, as per above report of the Architect. The opposite party is also liable to provide the basic facilities/amenities, as agreed between by them in the Allotment Letter, to the complainants.
23. In view of above discussion as well as the reasons and discussion held in Consumer Complaint No.586 of 2017, this complaint is allowed and following directions are issued to the opposite party:
i) to refund the sum of ₹1,46,274.57P, along with interest at the rate of 12% from the date of deposit of the additional charges for increase in the area of the flat, in question, till realization; and
ii) to pay ₹20,000/-, as compensation on account of the mental agony and harassment suffered by the complainants as well as litigation expenses.Consumer Complaint No.586 of 2017 18
24. Compliance of the orders passed in both the cases shall be made by the opposite party within 30 days of the receipt of certified copy of the order.
25. The complaints could not be decided within the stipulated timeframe, due to heavy pendency of Court cases.
26. Since there is shortage of postal stamps in this Commission, therefore, the parties through their counsel are directed to receive free certified copies of the order by hand and it is the responsibility of the learned counsel for the parties to inform them accordingly.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (MRS. KIRAN SIBAL) MEMBER January 22, 2018.
(Gurmeet S)