State Consumer Disputes Redressal Commission
Nitin Kalia vs Ansal Housing And Construction Ltd. on 11 September, 2015
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 577 of 2015
Date of institution: 4.6.2015
Date of Decision: 11.9.2015
Nitin Kalia son of Shri Sat Narain Kalia, resident of House No. 2754,
Sector 40/C, Chandigarh.
Appellant/Complainant
Versus
1. Ansal Housing and Construction Ltd. Registered and Head Office at
15 UGF, Indra Prakash, Barakhamba Road, New Delhi through its
Chairman & Managing Director.
2. Ansal Housing and Construction Ltd., SCO No. 34, Sector-5, Mansa
Devi Complex, Panchkula (Haryana) through its Additional General
Manager.
3. Ansal Housing and Construction Ltd., Zirakpur Site Office, Near
PSEB Grid, Nabha Road, Babhat, Zirakpur through its Project
Manager.
4. Sunrise Estate Management Service, GF-SR18, Ansal Plaza,
Vaishali, Ghaziabad-201010(UP) through its Director/Manager.
5. Sunrise Estate Management Services, Woodbury Apartments,
Babhat, Zirakpur through its Authorised Representative.
Respondents/OPs
First Appeal against the order dated 22.4.2015
passed by the District Consumer Disputes
Redressal Forum, SAS Nagar, Mohali.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Mrs. Surinder Pal Kaur, Member
First Appeal No. 577 of 2015 2
Present:-
For the appellant : Sh. O.P. Sharda, Advocate
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
The appellant/complainant(hereinafter referred as "complainant") has filed the present appeal against the order dated 22.4.2015 passed by the District Consumer Disputes Redressal Forum, SAS Nagar (Mohali) (hereinafter referred as the District Forum) in consumer complaint No.516 dated 19.8.2014 vide which the complaint filed by complainant was partly allowed with a direction to the OP to pay to complainant a lumpsum amount of Rs. 2 lacs for removal of defects and deficiencies and lumpsum compensation of Rs. 25,000/-. The order be complied within a period of one month.
2. A consumer complaint was filed by complainant under the Consumer Protection Act, 1986 (in short 'the Act') against respondents/OPs(hereinafter referred as OPs) on the averments that complainant got booked one flat bearing No. 102 having 1755 sq. ft. super area @ Rs. 1995/- per sq. ft. amounting to Rs. 35,01,225/- with OP Nos. 1 to 3, which is a limited company. They had lured the prospective buyer by making tall promises of water bodies, park, jogging park, entrance to pavilion, gazebo, badminton court etc.. Believing OPs in good faith, complainant alongwith his father had booked this flat. On that day, there was verbal promise to deliver the possession by January, 2009 whereas the actual possession has been delivered in 2012. OPs No. 1 to 3 had presented two plans for mode of payment, one of down payment plan and other was First Appeal No. 577 of 2015 3 construction link plan. Whereas complainant opted for construction link plan and by March, 2009, complainant had made the full payment to OPs and they paid a discount of Rs. 46,000/- to the complainant. He had also paid the Club Membership and covered car parking charges. On 7.1.2011, OPs had issued a letter of Offer of Possession at pre-possession stage, subject to clearing all outstanding dues after execution of the sale deed and also demanding external electrification charges amounting to Rs. 1,33,380/- and interest free maintenance security amounting to Rs. 43,875/-. It was further mentioned in the letter that common maintenance charges @ Rs. 1/- per sq. ft. per month shall be payable in advance for six months at the time of obtaining NOC for registry and now they are claiming maintenance charges of Rs. 2.25/- per sq. ft. per month and capital replacement fund @ Rs. 0.50 per sq. ft. per month. Complainant paid the external electrification charges vide cheque No. 19757 dated 14.3.2011 and receipt No. 457740 dated 14.3.2011 was issued by OPs. Vide letter dated 25.1.2012, OPs had revised the maintenance charges from Rs. 1.25/- per sq. ft. to Rs. 2.25/- per sq. ft.. Then he received a letter dated 5.6.2012 wherein a sum of Rs. 36,885.50/- was shown as unpaid towards basic cost whereas as per Exs. C-4 & 5, all the dues were paid. A sum of Rs. 12,455.25/- was shown towards external electrification charges. Complainant had paid all the charges including IFMS @ Rs. 25/- per sq. ft. vide receipt dated 18.8.2012. Actual physical possession was delivered on 14.9.2012. At the end of Calendar year 2012 when complainant sought a statement of account from OPs, as per statement of accounts bill for First Appeal No. 577 of 2015 4 the period 1.8.2012 to 31.12.2012 was Rs. 13,163/- for 5 months which on further division comes to Rs. 1.50/- per sq. ft., which showed that OPs had charged the maintenance charges without any basis. When the possession was taken, it was found that the flat was not in proper condition and there were many patches on the walls and doors, handle lock of one door was broken, wooden flooring was not proper. Photographs were clicked by complainant showing the condition of the naked wires of intercom and poor condition of the doors and walls. Email was sent to the Op on 23.6.2013. Demanding accounts of money collected by OPs on the pretext of club membership, auto power supply etc. and the procedure followed by OPs for allotment of contract of maintenance, upon which Mr. V.K. Mattoo, representative of the builder visited on July, 2013 and he was shown the poor condition of the flat. OPs had charged exorbitant high rate on account of club fee, external electrification charges and Rs. 43,875/- as interest free security for maintenance. OPs Nos. 1 to 3 had threatened that if the possession of the flat is not taken then holding charges @ Rs. 5/- per sq. ft. will be charged from complainant. He pointed out the following deficiencies in the flat:-
"a) The flooring, sanitary work, wood work is of poor quality;
b) Floor tile are of different textures and shades and do not match with each other;
c) The fire fighting system is incomplete and not in working order. The relevant NOC has been obtained from the fire department.First Appeal No. 577 of 2015 5
d) Further no completion, occupational and environmental certificates has been obtained by OPs. Further, application has been filed by OPs after receiving legal notice from the applicant.
e) The window of the master bedroom, is highly dangerous and prone to accidents no protection has been provided so far.
f) The over head water tank taken has not been insulated; it is giving boiling water in the summer and chilled water in the winter.
g) The sewerage connection is not approved from the competent authority;
h) There is no provision of hot and cold water and the provision of potable water is also not there.
i) The height of the main boundary wall is low and is easily scalable thus desired security is missing.
j) The completion certificate has not been got from the competent authority, the flats are unfit for inhabitation;
k) There is no separate water tank for WC, the door silencer;
door stopper and tower bolts have not been provided;
l) There is no provision of wire mesh windows and outer doors.
m) The chow ghats are of poor quality and alignment is also not proper.
n) The height of railings is low and unsafe;
o) There is no provision of proper drainage of rain water.
First Appeal No. 577 of 2015 6
p) No rain water harvesting system is provided in the flat as
per brochure.
q) The servant toilets are still incomplete and not handed
over to the applicant till date.
r) The wooden cupboards are not provided.
s) The open wiring has been done due to missing link of wife
which shown lack of supervision and lack of quality work done by OP No. 1. It needs POP.
t) Gas pipe line provision is there as mentioned in the brochure but not provided in the flat."
3. The act and conduct of OPs, amounted to deficiency in services. Hence, the complaint was filed against OPs seeking directions against OPs to:-
"a) The maintenance charges shall be revert back to the maintenance charges of Rs. 1/- per sq. ft. per month instead of Rs. 2/- and to waive off the capital replacement fund forever;
not to charge for maintenance and club fee till the project/club is complete in all respects;
b) Complete the work shown in para 31 above;
c) To take back the unwarranted power back related
charges and restore the power back connection.
d) pay jointly and severally Rs. 10,00,000/- for damages, mental tension, agony and torture along with cost of litigation Rs. 20,000/- with interest @ 18% pa. in the interest of justice. First Appeal No. 577 of 2015 7
e) pay the interest on account of delayed offer of possession and pay interest on possession amount which OP has charged one year before it was due."
4. The complaint was contested by OPs, who filed written reply in the form of affidavit taking preliminary objections that complainant was not a consumer as defined under Section 2(i)(d) of the Act as they had booked the flat for investment/commercial purposes as complainant had already a residential flat i.e. house No. 2754, Sector 40-C, Chandigarh since long and after relying upon the judgment dated 20.3.2014 in C.C. No. 270 of 2014 titled as "Madhu Saighal Vs. M/s Omaxe Build Home Pvt. Ltd." held that such type of commercial transaction is not covered under the Act; complaint was time barred and that complainant had concealed the material facts from the Hon'ble Forum and that he has not come to the Forum with clean hands. On merits, the booking of the flat was admitted and that complainant had paid Rs. 35,01,225/- towards the cost of the flat and OPs also forwarded the benefit of Rs. 46,000/- to complainant. Although he had opted for construction link plan. Pre-possession offer was issued to complainant to get the possession after paying the outstanding amount. The charges demanded by OPs were according to the buyer's agreement between the parties. All the facilities as promised were given to the complainant. There was no deficiency in services on the part of OPs. The complaint was without merit and it be dismissed.
5. The parties tendered their respective evidence. First Appeal No. 577 of 2015 8
6. In support of his allegations, complainant had tendered into evidence his affidavit Exs. CW-1/1 & 2, brouchure Ex. C-1, letter of allotment Ex. C-2, demand letter dt. 3.3.09 Ex. C-3, statement of balance payment Ex. C-4, pay order copy Ex. C-5, receipt Ex. C-6, offer of possession Ex. C-7, receipt Ex. C-8, reminder for clearing dues Ex. C-9, letter dt. 16.2.12 Ex. C-10, overdue outstanding balance Ex. C-11, receipt Ex. C-12, Sale Deed Ex. C-13, physical possession Ex. C-14, statement of a/c Ex. C-15, complaint Ex. C-16, e-mail Ex. C-17, photographs of deficiencies Ex. C-18, email Ex. C- 19, AMC charges detail Ex. C-20, letter of Op Ex. C-21, request for booking of covered car parking Ex. C-22, reservation of car parking space Ex. C-23, email Ex. C-24, letter of OPs Ex. C-25, receipt Ex. C-
26. On the other hand, OPs had tendered into evidence affidavit of Mintu Kumar Ex. Op-1/1.
7. After going through the allegations in the complaint, written reply filed by OPs, evidence and documents brought on the record, the complaint was allowed as referred above.
8. Aggrieved with the order passed by the learned District Forum, the appellant/complainant filed the present appeal.
9. We have heard the learned counsel for the appellant.
10. In the grounds of appeal, it has been stated that when the flat was booked, it was intimated that the possession would be delivered in January, 2009 whereas pre-possession letter was issued on 7.1.2011 and actually the possession was delivered on 14.9.2012 and the District Forum has not allowed any compensation on account of late delivery of possession. This aspect was dealt with by the First Appeal No. 577 of 2015 9 District Forum and the District Forum has relied upon Ex. C-2 letter of allotment alongwith terms and conditions of allotment and according to Clause No. 22, no outer date was given as to when the possession will be delivered. Rather it has been mentioned that the developer on completion of the development/construction shall issue final call notice (offer of possession) to the allottee, who shall within time period mentioned in such offer of possession remit all dues and take possession of unit after registration of Sale Deed and the date mentioned on the final call notice shall be deemed to be the date of possession. Whereas the pre-possession offer was given on 7.1.2011, it was subject to clearance of the payment outstanding against complainant, external electrification charges and on clearance of these charges, the possession was delivered to complainant. In case there is a written document between the parties then written documents would prevail then the oral assurance, if any, as pleaded by the complainant. Therefore, in case in the allotment letter alongwith terms and conditions had not prescribed the date of possession, it should be interpreted in that manner as mentioned in the terms and conditions and it cannot be as per the oral assurance, if any, as pleaded by complainant, therefore, when no such date as January, 2009 was given to complainant to deliver the possession then it cannot be said that the possession was not delivered to complainant within time as per the terms and conditions of the allotment.
11. It is next argued by the counsel for the appellant that the maintenance charges were extended at the rate of Rs. 2.25 per sq. ft. First Appeal No. 577 of 2015 10 whereas it was Rs. 1/- sq. ft. in the agreement and that the complainant was not consulted when OP Nos. 4 & 5 were engaged in the process of maintenance. In this context, Clause 28 of the terms and conditions of allotment is relevant, which reads as under:-
"28. The Allottee(s) upon development of the said Group Housing and offer of possession of the Unit shall enter into a maintenance agreement with any Association/Body of Units owners or any other nominee/agency/association(s) or other body(ies) (hereinafter referred to as 'the Maintenance Agency') as may be appointed/nominated by the Developer from time to time for the various common services or facilities including the upkeep, repairs, security and maintenance etc. of the said project and its common areas and the Allottee(s) shall pay the maintenance charges as per bills raised by the Maintenance Agency, as & when and in the manner demanded by the said Maintenance Agency, from the date of offer of possession, irrespective of whether the Allottee(s) is in possession of the Unit or not. In order to secure due performance of the Allottee(s) in prompt payment of the maintenance bills and other charges raised by the maintenance agency, the Allottee(s) shall deposit, as per the schedule of payment and to always keep deposited with the Developer or the Maintenance Agency, nominated by the Developer, an Interest free Maintenance Security(IFMS) on such rates as may be decided by the Developer or its nominated agency in its sole discretion. In case of failure of the Allottee(s) to pay the maintenance bill, First Appeal No. 577 of 2015 11 other charges on or before the due date, the Allottee(s) in addition to permitting the Developer/maintenance agency to deny him/her the maintenance services, also authorises the Developer to adjust the amount of the security deposited against such defaults. This arrangement shall continue till the Group Housing is handed over to the Municipal Authorities or the Association of the Allottees/occupants. The Allottee(s) agrees to pay the maintenance charges equivalent to Six months maintenance charges in advance to the Developer or its nominated agency.
Further, the Developer / its nominated agency reserves the right to increase maintenance charges / security deposit from time to time in keeping with the increase in the cost of maintenance services and the Allottee(s) agrees to pay such increases on demand by the Developer/its nominated agency for the maintenance. If the Allottee(s) fails to pay such increase in the Maintenance charges/Security deposit or to make good the shortfall as aforesaid on or before its due date, then the Allottee(s) authorises the Developer to treat the allotment as cancelled without any notice to the Allottee(s) and to recover the shortfall from the sale proceeds of the said Unit and to refund to the Allottee(s) only the balance of the money realised from such sale after deducting therefrom the entire earnest money, interest on delayed payments, any interest paid, due or payable and all other dues as set out in the payment plan. It is made specifically clear and it is so agreed by and between the First Appeal No. 577 of 2015 12 parties hereto that this condition relating to the maintenance charges /security deposit as stipulated in this clause shall survive the conveyance of title in favour of the Allottee(s) and the Developer shall have first charge / lien on the said Unit in respect of any such non payment of shortfall / increases as the case may be."
12. Under this clause, the ops reserve the right to nominate the agency for maintenance charges as well as providing of security. In those circumstances, association of the complainant was not necessary and charges can be increased keeping increase in the case of maintenance and services as well as providing of security. The agreement was executed in the year 2007 and this amount was demanded lateron in the year 2012 before delivery of the possession. Therefore, during that period, there was increase in the cost of maintenance and security services, therefore, the rate was accordingly, increased, which was justified in accordance with the terms and conditions of the agreement.
13. It is next argued that he was provided stilt parking whereas there was agreement of covered parking and in case it is stilt parking then the OPs were not entitled to the car parking charges. He has taken the support from the judgment of the Hon'ble Supreme Court AIR 2010 Supreme Court 3607 "Nahalchand Laloochand Pvt. Ltd. v. Panchali Co-operative Housing Society Ltd.", which is based upon Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act of 1963. Moreover, no evidence has been led by the complainant that First Appeal No. 577 of 2015 13 the parking given to him is stilt parking and not the covered parking and no relief has been sought for by the complainant with regard to refund of the amount paid by him as only stilt car parking was provided, therefore, in case this point was not pleaded before the District Forum regarding refund of the car parking charges paid to the OP then how in the appeal that point can be raised.
14. It is next argued that external electrification charges have been wrongly taken from the complainant. The same were paid by the complainant on demand by the OPs without any reservation and again in the complaint, he has not sought for the refund of that amount paid by him to the OPs or that the Ops were not entitled to take these charges. Therefore, this plea has been taken for the first time in the appeal and this plea was not taken by him in the complaint before the District Forum, therefore, no relief beyond pleadings can be given to the complainant.
15. A sum of Rs. 12,455.25p was taken on account of service tax, which he was not liable to pay. The Service Tax was charged from the complainant as per the policy of the Government. It was held by the Hon'ble Madras High Court reported in 2006(4) STR 14 "All India Tax Payers Association Vs. Union of India" wherein it has been clarified that under the provisions of Finance Act, 1994 the Service Tax is levied on taxable service only and not on service provider. Service provider is only an assesse under Section 65 of the Finance Act from the user of service as contemplated under section 12-A and 12-B of the Central Excise Act.
First Appeal No. 577 of 2015 14
16. It is next argued that the services/facility as promised by the Ops has not been given and that the amount so awarded by the District Forum is not sufficient. As per the order passed by the District Forum for various deficiencies, in completion of the maintenance/services, a sum of Rs. 2 lac has been awarded in lumpsum, which amount seems to be a reasonable amount.
17. An other relief sought for by the complainant was not to charge club fee till the club is complete in all respects. Each flat owner has paid Rs. 60,000/-, a part of club has been constructed but it is not totally complete. Against all the deficiencies as referred above, a lumpsum amount of Rs. 2 lac has already been granted to the complainant by the District Forum.
18. No other plea was raised.
19. We are of the opinion that with regard to the deficiency in services of the OPs, the learned District Forum has already granted a reasonable amount with regard to deficiencies. Most of the reliefs asked for by the complainant in the appeal have been taken for the first time in the appeal and were not pleaded before the District Forum. Otherwise, the District Forum has already granted a reasonable sum of Rs. 2 lac to complete the deficiency in services in the flat.
20. We are of the opinion that in case sufficient amount has already been granted and no scope of any further enhancement then we cannot see any point for admission of the appeal. The same is hereby dismissed in limine.
First Appeal No. 577 of 2015 15
21. The arguments in this appeal were heard on 2.9.2015 and the order was reserved. Now the order be communicated to the parties as per rules.
22. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran)
Presiding Judicial Member
September 11, 2015. (Surinder Pal Kaur)
as Member