State Consumer Disputes Redressal Commission
Gurinder Singh Grover vs Impact Sare Magnum Township Pvt. Ltd. on 10 December, 2018
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
Consumer Complaint No.985 of 2017
Date of Institution: 13.11.2017
Order reserved on: 05.12.2018
Date of Decision : 10.12.2018
1. Gurinder Singh Grover S/o Santokh Singh
2. Narinder Kaur Grover W/o S. Gurinder Singh Grover,
both are R/o A-5/303, Type 3 BHK, Crescent Parc, Ashberry
Homes, G.T. Road, Bye Pass, Near Vallah, Amritsar.
.....Complainants
Versus
Impact Sare Magnum Township Private Limited, having its Branch
Office at P.O. Vallah, G.T. Road Bye Pass, Amritsar, through its
Chairman/Managing Director/Principle Officer.
.....Opposite Party
Complaint U/s 17(1)(a) of the Consumer
Protection Act, 1986 (as amended up to
date).
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Smt. Kiran Sibal, Member.
Present:-
For the complainants : Sh. Ravinder Rana, Advocate For the opposite party : Sh. Rajat Chopra, Advocate .................................................................................. J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The complainants have instituted this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act") against the opposite party (OP) on the premise, that they filed complaint no.117 of 2014 before District Forum Amritsar, which was returned to complainant for want of pecuniary jurisdiction of that Forum. Thereafter, the complainant presented the complaint before this Commission on 13.11.2017 on the averments, as contained in the original complaint before the District Forum Amritsar to the effect Consumer Complaint No.985 of 2017 2 that they have been allotted unit no.A05/303, type 3BHK at Crescent Parc-Ashbery Homes, Amritsar by OP and flat buyers agreement was executed on 15.11.2010 between them. The OP assured them at the time of allotment that flat would be of 1405 square feet super area, but the actual area of the flat as handed over to them was smaller than the agreed area of the flat as above. The complainants requested OP repeatedly to refund the amount charged in excess from them, whereas the area allotted to them was smaller than agreed one by OP. The OP was also to provide the basic amenities to complainants in the above project of the flats. There is no boundary wall in the backyard of the Tower of the flats, where flat of the complainants is situated, exposing it to grave security consequences. The OP has not developed the township and has not developed landscape parks, swimming pool facilities, club facilities therein. The complainants seek direction to OP to develop the township as promised by it at the time of sale of flat to them and to refund the excess price received from them for the lesser area, as the flat of shorter area was handed to them by OP. They also seek compensation of Rs.4,50,000/- and cost of litigation from OP.
2. Upon notice, OP filed written reply by raising preliminary objections that flat buyers agreement was executed on 15.11.2010 between the parties and as per para no.21.2 of it, the Forum at Chandigarh has no territorial jurisdiction to try the complaint. The complainants themselves filled the booking application dated 02.09.2010 by booking three bedroom flat having super area of 1405 Consumer Complaint No.985 of 2017 3 square feet in the project of OP at Amritsar namely Ashberry Homes and hence this Commission has no territorial jurisdiction to entertain it. The flat buyers agreement was executed between parties on 15.11.2010. Possession certificate with regard to flat bearing no.0303, type 3BHK, 3rd floor in the building no.A-05 was issued to complainant no.1 on 05.08.2013 by OP with the undertaking that the said flat has been taken into possession after physical inspection of the same and after duly satisfying themselves by complainants about the quality of construction, specifications, super/built-up area, facilities, amenities and elevation, design in terms of flat buyer's agreement without any sort of protest. The key of the said flat was handed to complainant no.1 on 05.08.2013 by OP and complainants suppressed the material facts from this Commission. Flat in question is of 1405 square feet and is not less than that, as alleged by the complainants. Complainant no.1 applied for 3BHK, as per application form and flat buyers agreement. After execution of sale deed dated 05.08.2013, they were delivered possession of super area of 1405 square feet, as mentioned in clause 1.6 of flat buyer's agreement by OP and also so mentioned in clause no.3 of the application form. As per inspection report prepared by Rohit Gupta (Civil Engineer), the total area of the flat is 1088.66 square feet. It was stated in the above said report that Rohit Gupta measured carpet area, cupboard, balcony projections, area of walls, 1/4 share of the fire place, lift and stair case, which is calculated to be 1088.66 square feet. But as per definition of super area, it includes the area under the periphery Consumer Complaint No.985 of 2017 4 walls, area under common and walls with the said flat, areas of the wall common with other adjoining flats, cupboards, plumbing shafts, projections, pergolas, and balconies within the said flat and half the area of common walls with adjoining flats, plus proportionate share of area utilized for common use and facilities, lifts etc., but the Civil Engineer has intentionally and deliberately not calculated the above areas as per the above mentioned clause of the flat buyer's agreement and prepared a false report only. The site plan was duly approved by competent authorities as per clause 1.6 of the agreement. The OP fully developed it attendant with all the facilities and provided amenities to allottees residing there, as per approved layout plan and promises made at the time of execution of buyers agreement by it. The complainants filed the complaint because OP issued legal notice to them for making payment of arrears of maintenance charges, electricity charges amounting to Rs.1,05,997/- due on 31.03.2018, but they have not made payments of maintenance charges and electricity charges to OP. The OP also controverted the other averments of complainants on the above referred grounds and prayed for dismissal of the complaint.
3. The complainants tendered in evidence affidavits of Gurinder Singh Grover Ex.C-A and Ex.C-B alongwith documents Ex.C-1 to Ex.C-10 and closed the evidence. As against it, OP tendered in evidence affidavit of Ajay Singh Cheema, Director Ex.OP-A alongwith copies of documents Ex.OP-1 to Ex.OP-9 and closed the evidence.
Consumer Complaint No.985 of 2017 5
4. We have heard the learned counsel for the parties and also examined the record of the case. Only two fold controversies are involved in this cases for their resolution by us. The first controversy is as to whether OP has completed the project and provided the amenities therein to the complainants or not. The complainants have alleged that OP has not property developed the project by not providing the landscape parks, swimming pool, club facility therein. The onus to prove this fact is on the complainants. The evidence of the complainants has been examined by us on this score. The complainants relied upon the brochure Ex.C-4 to Ex.C-6 on the record and also relied upon the report of the Architect Ex.C-7 and has tendered his own affidavits Ex.CA and CB and the photographs Ex.C-10. The report of Architect Ex.C-7 is sub silentio on this point of lack of above amenities in the project. The photographs do not show the lack of above facilities in the project, as canvassed by the complainants. There is, thus, evidence of complainants, coupled with buyers agreement Ex.C-1, on the record only. Complainant no.1 himself has placed on record the completion certificate of the project issued by Municipal Town Planner, Municipal Corporation Amritsar, vide no.1621 dated 24.12.2012. The competent authority has issued the completion certificate of the project to OP. The onus is on complainants to prove that this completion certificate is not correct, but the affidavits of the complainant on oath stood rebutted by the contrary affidavit of OP on oath on the record against it. In this view of the matter and more Consumer Complaint No.985 of 2017 6 particularly, the photographs of OP on the record, we find no substance in this plea of the complainants. Consequently, the complainants remained unsuccessful in proving the lack of above facilities in the project on the part of OP and it is so held by us. This point is, thus, decided against the complainants accordingly by this Commission.
5. The next bone of contention between the parties in this case pertains to the point whether OP delivered the lesser area than agreed upon of the flat to the complainants in this case. Affidavits of both the parties have been perused by us on the record. The version of complainants appeared in complainant no.1 affidavit Ex.C-B that OP agreed to deliver the flat of super area of 1405 square feet and charged the amount from them for the above area @Rs.1850/- per square feet, as per flat buyer's agreement, but OP delivered the flat with lesser area to them and OP is, thus, guilty of unfair trade practice and deficient in service on this count. To counter this evidence of complainant, OP relied upon affidavit of Ajay Singh Cheema (Director) Ex.OP-A on the record. He testified in his deposition that he is authorized by Board of Directors of OP Company to pursue the complaint vide resolution Ex.OP-1 in his favour. He further stated that flat buyer's agreement was executed between the parties for above flat of 3BHK, 3rd floor in tower A05. He further deposed that the area of the flat is complete and is not lesser. The other documents have also been examined by us. The OP gave out in the brochure Ex.C-5 that area of the flat would be of Consumer Complaint No.985 of 2017 7 1405 square feet. The conveyance deed has also been executed by OP in favour of complainant on 05.08.2013 with regard to super area of 1405 square feet. Even in flat buyers agreement, the area of the flat was set out as 1405 square feet. It is proved fact on the record that OPs received the price of 1405 square feet of the flat from complainants. The conveyance deed was executed on 05.08.2013 in favour of complainants by OP of this flat and the instant complaint was filed before the District Forum Amritsar originally in the year 2014 and hence it is within the time. The complainants raised the grievance for lesser area of the flat from the date of execution of conveyance deed and delivered the possession thereof to them. The complaint is, thus, within time. The onus is on the complainants to prove that OP delivered area shorter than 1405 square feet to them. The complainants mainly relied upon report of Architect Rohit Gupta (Civil Engineer) Ex.C-7. The author of the report dated 08.12.2015 Ex.C-7 also tendered his affidavit Ex.C-8 on the record proving his above report on oath. It has been proved from perusal of report that he measured and calculated the carpet area, cup-boards area, balcony/projections area, area of walls, 1/4 share of the area of fire place, lift and staircase. He gave report that the total area of flat no.A-5/303 is 1083.66 square feet only and not 1405 square feet. The submission of counsel for OP is that some of the area is under the walls and other structure, which has not been taken into account by the Civil Engineer in this case. The matter has been examined by the National Commission in "Shailendra Kumar Vs. Jagdish A. Consumer Complaint No.985 of 2017 8 Dialani and another" 2018(IV)CPJ-286(NC) and has been held as below:
"Consumer Protection Act, 1986- Sections 2(1)(g), 21(a)(ii)- Housing - Purchase of residential flat - Allegedly less carpet area delivered - Balance additional area or price of deficient area demanded - Deficiency in service - State Commission dismissed complaint - Hence appeal - After deducting carpet area under jams and including carpet area of flat comes to 713.39 square feet- As far as area under internal wall and external is concerned, same cannot be said to be a carpet area and therefore cannot be included for purpose of arriving at total carpet area of flat - Deficient area comes to 46.61 square feet - Complainant had paid Rs.25.00 lacs for 760 square feet of carpet area - Value of deficient carpet area comes to Rs.1,53,388 - He is also liable to recover excess stamp duty."
It is, thus, plain from perusal of law laid down by the National Commission (supra) that as far as area under internal wall and external is concerned, same cannot be said to be a carpet area and therefore cannot be included for purpose of arriving at total carpet area of flat. The complainants alleged that area of the flat is 1083.66 square feet not 1405 square feet, as originally agreed upon between them. It is lesser than the area of flat given to them by OPs being shorter by almost 321 square feet. The agreed rate is Rs.1850 per square feet, as per the cost detail between the parties. The OP charged price of 321 square feet in excess, whereas the actual size Consumer Complaint No.985 of 2017 9 of the area of the flat is 1083.66 square feet only as proved by above Civil Engineer in his report.
6. As a result of our above discussion, the complaint is partly accepted and OP is directed to pay the amount of Rs.5,93,850/- to complainants towards price of shorter area i.e. 321 square feet x @1850 per square feet = Rs.5,93,850/- (five lakh ninety three thousands eight hundred and fifty only). The complainants are held entitled to recover the excess stamp duty from OP incurred on the conveyance deed by them for the above shorter area as well. The complainants are held entitled to compensation of Rs.30,000/- for mental harassment and Rs.20,000/- as cost of litigation. These amounts shall be payable by OP to complainants within 45 days from the date of receipt of certified copy of the order.
7. Arguments in this complaint were heard on 05.12.2018 and the order was reserved. The certified copies of the order be communicated to the parties, as per rules.
8. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (KIRAN SIBAL) MEMBER December 10, 2018.
(MM)