National Consumer Disputes Redressal
Ku. Smita Roy vs Excel Construction, Bilaspur on 14 February, 2012
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 211 OF 2011 WITH IA/2/2011 (FOR CONDONATION OF DELAY) (Against the order dated 23.3.2011 in Complaint No.01/2010 of the State Commission, Chhattisgarh) Ku. Smita Roy D/o Shri Ranjan Roy, R/o A-62, Chittaranjan Park, New Delhi Also residing at : R/o H.I.G. 106, Kanchan Ashwa Parishar, C Block, Phase-2, Deendayal Nagar, (Opposite Passport Office) Raipur, District Raipur (C.G.) Appellant Vs. 1. Excel Construction, Bilaspur Through : Ashish Sarkar, Partner Excel Construction: Durga Bhawan, Tikrapara Bilaspur, District Bilaspur (C.G.) 2. Amit Sharma Partner Excel Construction, Durga Bhawan, Tikrapara Bilaspur, District Bilaspur (C.G.) .Respondents BEFORE: HONBLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER HON'BLE MR. VINAY KUMAR, MEMBER For the Appellant : Mr. Nikhil Nayar, Advocate with Mr. Kunal Chatterjee and Ms. Maitrayee Banerjee, Advocates Pronounced on : 14th February, 2012 ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER . In this appeal, there is challenge to order dated 23.3.2011, passed by State Consumer Disptues Redressal Commission, Raipur (for short as State Commission). Vide impugned order, State Commission has dismissed the complaint of the appellant.
2. Along with the appeal, appellant filed an application for condonation of delay. However, no period has been mentioned in the application. As per office report, there is delay of 26 days in filing of the appeal. For the reasons mentioned in the application, the delay is condoned.
3. Brief facts are that appellant/complainant filed complaint under Section 17 of the Consumer Protection Act, 1986 (for short as (Act) alleging deficiency in service against the respondents/opposite parties. It is alleged that appellant booked flats no.205 & 305 on the second and third storey of multi storey complex known as Vaishali Pride by way of an agreement deed 11.4.2008 for consideration of Rs.18,00,000/-, but she had deposited Rs.20,16,000/- towards cost of flat, 3 phase electric meter, registry fee and towards charges of other work. It is further alleged that at the time of registry of sale deed, respondent no.1 had shown proposed map of Vaishali Pride site and also the approved map of Municipal Corporation, according to which flats no.205 & 305 were shown facing east side and each flat was shown consisting of 2 bed rooms, kitchen, 3 toilets and balcony and after having liked those two flats were booked.
Sale deed of said flats was registered on 17.04.2008 for which cost and other charges totaling Rs.20,16,000/- were paid and No Dues certificate was issued by respondent no.1 on 21.4.2009.
4. It is also alleged that respondent no.1 got fraudulently the signatures of Ranjan Roy,( father of the complainant) on the document of handing over possession of the flats. When appellant went to take possession of aforesaid flats, she noticed that aforesaid flats had already been allotted to other person and he was in its possession also. On her lodging complaint with respondent no.1, she was told that her flats would be provided soon and till that time she was advised to occupy flats no.206 & 306 which were facing west side and were in a shape of a duplex house. The construction of those flats was inferior. It is further alleged that appellant was compelled to live in those flats which as per approved map are numbering 206 &
306. It is also alleged that appellant was provided flats by respondent no.1, which were other than what was booked in terms of agreement and also as approved by Municipal Corporation, Bilaspur. Respondents with an intention to derive additional benefit, handed over her actual flats to another person and its such act is indicative of unfair trade practice. It is further alleged that respondents collected from her Rs.25,000/- towards three phase electric connection and transformer whereas it spent Rs.2,215/- towards meter and Rs.7,000/- towards transformer totaling Rs.9,000/- only. A notice was also sent to the respondent on 25.11.2009 by Regd. Post but the same was refused. Appellant has prayed that respondent no.1 be directed to provide flats no.205 and 305 as per agreement and as per approval map of Municipal Corporation. Appellant has also sought refund of Rs.16,000/- collected in excess towards electric meter & transformer and payment of compensation of Rs.20,00,000/-, towards mental agony with cost of proceedings.
5. In its reply, respondent no.1 stated that as per agreement dated 11.4.2008, flat no.205 & 305 constructed in the multi storey complex and located on second and third floor facing west, were booked by the appellant and she according to her choice had availed additional construction whereby said two flats were connected by way of stair case and bedroom, toilet, kitchen were constructed as per her own convenience.
Construction of flats was made with the consent of the appellant and after due satisfaction, payment was made by her for additional construction. Appellant had been shown the approved map of Town & Country Planning. Rs.20,16,000/- in all was paid by the appellant for which No Dues Certificate was issued by respondent no.1 on 21.4.2009.
6. It is denied that signature of Mr. Ranjit Roy (father of appellant) had been obtained fraudulently at the time of handing over of said flats no.205 and 305 which were already handed over to other person and who was in possession of it and in lieu of which the appellant was asked to live in flats no.206 and 306 situated in west. It is further alleged that appellant had booked flats no.205 and 305 after seeing it and got the same registered as per agreement. The flats situated on east side were earlier booked in the names of Smt. Nanda Mukherjee and Hemant Mukehrjee and they are in its possession. It is also alleged that construction work was done as per terms and condition of agreement and no deficiency in service in construction work or any unfair practice was done by respondent no.1.
7. Respondents no.2 reply is almost on same lines as that of respondent No.1. It has been further alleged that Rs.15,000/- was charged from each flat owner towards installation of electric meter and since appellant had purchased two flats, so Rs.25,000/- was charged instead of Rs.30,000/-. It is also alleged that husband of the appellant is treasurer of society formed for welfare of the flat holders and she never raised such complaint earlier.
8. It has been further alleged that mother of appellant had filed a Civil Suit No.152-A/2009 before Third Civil Judge, Bilaspur and has moved an application under Order 39 Rules 1 & 2 CPC for temporary Injunction, which was dismissed by Civil Court and in that case also no such complaint was raised. The appellant had purchased the flats after having been financed by bank and the loan was sanctioned after seeing its situation on western side. It is further stated that no complaint about fraudulent sale of flats was ever made and present complaint has been filed on false ground and is liable to be dismissed.
9. It is contended by learned counsel for the appellant that the flats booked by the appellant were east facing flats in terms of the map approved by the Municipal Corporation. Further, the construction of work and material used are of inferior quality. It were the respondents who asked the appellant to stay temporarily in flats no.206 and 306. Thus, the appellant has been forced to live in these flats, which is unlawful on part of the respondents. Accordingly, there has been deficiency on the part of respondent.
10. State Commission formulated following two questions for deciding the controversy ;
(A) Whether OP builder has committed deficiency in service by providing possession of flats other than what were booked ?
(B) Whether OP collected excess amount towards electric connection ?
and held ;
(A)
(i) As per copy of agreement for sale of plot vide documents no.1 to 5, flats no.205 and 305, mentioned as situated on second and third floor and having accommodation of 3 bed rooms super build up area 1940 sft. Costing Rs.18,00,000/-, were booked with OP No.1 by the complainant but proposed map was not there in support.
As per terms and condition no.1 of Annex. B of said document, the complainant having applied for allotment of flat is entitled to see the site plan/building plan/models available in its office, obviously the complainant must have seen the proposed site/plan and after having been satisfied booked the questioned flats.
(B) As per copy of sale deed on record page 2 the site Vaishali Pride has been shown boundaries on four sides north, south, east and west. Further map of flats on second floor and third floor have also been shown on documents no.14 & !5 about its lay out of proposed construction. We find that proposed map of flats is the same what has been shown in the approved map of Municipal Corporation, Bilaspur as per drawing in wide page placed on record. Further on document s. no.19 of sale deed, boundary of questioned flats no.205 and 305 has been mentioned. Sale deed was executed and registered on 17.4.2008 and thereafter on completion of construction the questioned flats were handed over to the complainant on 21.4.2009, as per No Dues Certificate dated 7.1.2010 vide documents no.27.
During said period 17.4.2008 to 7.1.2010 the complainant had enough time to verify the situation, location, construction of flats and to file any sort of complaint, if at all, with OP no.1 builder but no such fact is on record. Moreover, the complainant has not only paid full cost of flats but has also paid Rs.76,550/- towards cost of extra work as per document no.26 and taken possession of flats obviously it must have been in her full satisfaction and she was well aware of the site and related development.
(iii) The allegation of the complainant is that questioned flats were proposed as facing east whereas she was given possession of flats facing west. We find that the complainant had raised some queries in respect of flats no.205 & 305 under RTI Act and in this regard a letter dated 1.7.2010 of Municipal Corporation, Bilaspur, available on record, is relevant which clarifies in item no.1 that the questioned flats no.205 & 305 as per approved map are shown as facing west as such the contention of the complainant is not sustainable.
(iv) Another allegation of the complainant is that at the time of hand over, signature of her father were taken fraudulently but no evidence like filing of police report or any other cogent material has been produced so her such contention is also not sustainable.
(v) Another allegation of the complainant is that when she noticed that her flats no.205 & 305 were already sold to other person so she was asked by OP no.1 to occupy temporarily and ultimately compelled to live in flats no.206 and 306 but no cogent evidence has been produced in support, as such the contention is not sustainable.
(vi) Another allegation of the complainant is that on frequent requests to OP no.1 for providing flats, her family members were mentally harassed for example when the residing flat was locked, electric meter was burnt by OP No.1 and plant pots were thrown away. The complainant had lodged a complaint with Police Thana, Bilaspur alleging misconduct of OP No.1 and also a Criminal Complaint in Criminal Court, Bilaspur was filed which directed Police Thana to inquire into the matter and in turn Police Thana, Bilaspur vide its letter dated 25.1.2010 observed in its finding that flat number of flats did appear in the maps produced by the complainant whereas flat numbers did not appear in the map produced by OP and flat number mentioned by the complainant appeared incorrect. The application under Order 39 Rules 1 & 2 CPC of the complainant was dismissed by Civil Court, Bilaspur vide its order dated 29.9.2009, thus contention of the complainant is not sustainable.
(vii) Learned counsel for the complainant argued that lift has been provided inside the house causing inconvenience. We find that as per letter dated 13.8.2010 written by Municipal Corporation, Bilaspur to Asstt. Information Officer, Bilaspur available on record, it has been clarified in second para that open area adjoining common lift in front of flats no.106, 206 and 306 (marked in the site as flat no.105, 205 and 305) has been shown in the area of flats so it is appearing inside the flats.
Thus, the plea that lift in the flat area is not sustainable.
(C) The complainant alleged that OPs collected Rs.25,000/- towards electric connection but spent only Rs.2,515/- towards electric meter and Rs.7,000/- towards transformer. We find that as per agreement for sale of plot dated 11.4.2008 in terms of condition no.7 charges for electric meter and installation of transformer were payable but quantum was not mentioned. There is no evidence on record as to what amount was actually payable or paid to the electricity board. The matter rests about settlement of account and cannot be adjudicated by a consumer Fora as per settled law.
We find that a criminal complaint in respect of the questioned flats was filed before JMFC, Bilaspur by the father of the complainant, a civil case for declaration and injunction was filed in respect of the same flats before Third Civil Judge, Class-2, Bilaspur by the mother of the complainant, without any plea regarding the dispute raised by this complaint and this complaint before this Commission was filed by the complainant, which indicates her attitude of ulterior motive in the matter.
We find that the complainant had booked questioned flats as per sale agreement dated 11.4.2008 and entered into sale deed on 17.4.2008, paid total cost of flats including cost of additional construction and took its possession on 21.4.2009 and collected also No Dues/possession letter dated 7.1.2010 obviously in her full satisfaction. In the facts and circumstances of the case and foregoing discussion the complainant could not succeed in establishing the allegation of deficiency in service against OPs, so the complaint deserves to be and is dismissed.
11. As per copy of agreement for sale as well as copy of sale deed placed on record, it is nowhere mentioned as to whether the flats allotted to the appellant are East facing or west facing.
12. It is an admitted fact that possession of flats no. 205 and 305 was taken by the appellant on 21.4.2009 without any objection. Copy of No Dues/Possession letter is placed at page 17 of the paper book, which read as under ;
NO DUES/POSSESSION LETTER To whomsoever it may concern This is to certify that today dated 21.4.2009 we have handed over and given possession of the flat no.205 & 305 at Vaishali Pride, Minacha Colony, Vikas Nagar Mangla, Bilaspur (C.G.) to Miss Smita Roy after completion of the flat with full respect. We have got the full payment of the flat and there is no outstanding amount.
Signature of the Regd. Flat Owner Signature of the Builder/Promoter
13. Appellant after getting the possession of the flats in question did not raise the issue with regard to the location of the flats as well as with regard to the inferior construction with the respondent. It was for the first time in its notice dated 25.11.2009, appellant had raised these issues.
14. Once the possession has been received by the appellant with open eyes and without any objection, now it does not lie in her mouth to allege about the location and deficiencies etc.
15. Accordingly, we hold that the order passed by State Commission is based on sound reasoning and it has gone into each aspect. We do not find any illegality or infirmity in the impugned order of the State Commission.
Present appeal being without any legal basis, is hereby dismissed with costs of Rs.10,000/-.
16. Appellant is directed to deposit the costs of Rs.10,000/- in the Consumer Legal Aid Account of this Commission, within thirty days. In case, appellant fails to deposit the said costs within the prescribed period, she shall also be liable to pay interest @ 9% p.a., till realization.
17. List the matter for compliance on 30.3.2012.
...J (V.B. GUPTA) (PRESIDING MEMBER) ....
(VINAY KUMAR) (MEMBER) Sg/