State Consumer Disputes Redressal Commission
Nikhil Bhushan Sood vs Soni Hi-Tech Builders Pvt. Ltd. on 13 October, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
Consumer Complaint No.328 of 2017
Date of institution : 04.05.2017
Reserved On : 29.09.2017
Date of decision : 13.10.2017
Nikhil Bhushan Sood, aged 29 years, S/o Sh. Kulbhushan Sood, R/o
H.No.76-168, Anaj Mandi, Ganj Bazar, Shimla (H.P.), through his
Attorney, Kulbhushan Sood.
....Complainant
Versus
1. Soni Hi-Tech Builders Pvt. Ltd., Office at SCF at SCF No.7-8
MAA (NEW) Shimla Homes, Parwati Enclave Road, near Vikram
Public School, Desu Majra, Tehsil Kharar, District SAS Nagar,
Mohali, through its Managing Director, Sh. Radhey Soni.
2. Radhey Soni, Managing Director, Soni Hi-Tech Builders Pvt. Ltd.,
Office at SCF at SCF No.7-8 MAA (NEW) Shimla Homes,
Parwati Enclave Road, near Vikram Public School, Desu Majra,
Tehsil Kharar, District SAS Nagar, Mohali.
3. MAA (NEW) Shimla Homes Society, C/o Soni Hi-Tech Builders
Pvt. Ltd., Office at SCF at SCF No.7-8,Parwati Enclave Road,
near Vikram Public School, Desu Majra, Tehsil Kharar, District
SAS Nagar, Mohali.
....Opposite Parties
Consumer Complaint 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 complainant : Sh. Varun Bhardwaj, Advocate For the opposite parties: None.
JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT :
Facts of the Complaint The complainant has filed this complaint, under Section 17 of the Consumer Protection Act, 1986, through his attorney, Sh. Consumer Complaint No.328 of 2017 2 Kulbhushan Sood, against the opposite parties, seeking issuance of following directions to them:
i) to rectify the following defects/make up deficiencies and to use the material, as promised by them at the time of executing the Agreement to Sell dated 13.03.2013:
a) to complete the work;
b) to provide the modular kitchen;
c) to complete the bathroom with drainage system;
d) to paint the windows, doors as well as walls;
e) to change the broken tiles;
f) to rectify the water seepage at various places;
g) to replace current doors and windows by affixing teakwood;
h) to install separate electricity meter in the flat;
i) to construct proper roads leading to the house;
j) to provide the drainage system on the kachha road, which are made of soil;
ii) to provide jamabandi, tatima, approved maps, which opposite parties should have submitted to the Bank for loan approval;
iii) to pay ₹25,00,000/-, as compensation on account of mental tension and harassment suffered by the complainant; and
iv) to pay ₹4,00,000/- towards litigation expenses.
Brief facts, as set out in the complaint, are that the complainant is reputed person and is working in Merchant Navy since December, 2005. He applied for residential flat for himself and for his family Consumer Complaint No.328 of 2017 3 members with opposite parties No.1 & 2 in 'MAA (NEW) Shimla Homes Society', i.e. Flat No.13, Top Floor, consisting of drawing, dining, three bedrooms, modular kitchen, three toilets, having super area of 1300 sq.ft., along with 1/3rd un-partitioned share of land measuring 35 sq.yds. out of the land bearing Khewat Khatooni No.300- 380, Khasra No.33//11/18/1 (4-11) situated at MAA (NEW) Shimla Homes (Part-I), Hadbast No.33, Tehsil Kharar, District SAS Nagar. The total cost of the said flat was ₹34,00,000/-. Opposite party No.2 assured and promised that 'A' class material would be used while constructing the flat. Agreement to Sell was executed between the complainant and opposite parties No.1 & 2 on 14.12.2012 and a sum of ₹8,20,000/- was paid by the complainant to them at that time, vide two cheques dated 30.11.2012 and 12.12.2012. Last date for execution and registration of the Sale Dee was fixed as 10.03.2013. The complainant visited the flat, along with his father, and found that there was leakage in rooms, bathrooms and there was no proper drainage system, besides various other defects in the flat. On account of above reason, the complainant asked opposite party No.2 to refund his money, as he was not interested to purchase the said flat. However, opposite party No.2 offered another flat No.96 (Duplex), Ist and 2nd Floor, consisting of drawing, dining, three bedrooms, modular kitchen, four ready toilets, having super area of 2500 sq.ft., along with 1/3rd un-partitioned share of land measuring 70 sq.yds. out of land bearing Khewat Khatooni No.189-225, Khasra No.33//13/1 (2 kanal 0 marla) situated in their above said project. The total cost of the said flat Consumer Complaint No.328 of 2017 4 was ₹45,50,000/-. Use of 'A' class material in that flat was also promised and assured. The complainant agreed to that proposal of the opposite party No.2 and entered into Agreement to Sell on 13.03.2013. Last date for execution and registration of sale deed was given as 20.04.2013. The earlier payment of ₹8,20,000/- made by the complainant was adjusted by opposite party No.2 towards the later flat offered by it. Allotment letter, allotting the above said flat was duly issued to the complainant on 13.03.2013. Thereafter, the complainant accepted an offer made by opposite party No.2 for obtaining loan from HDFC Bank, Sector 8-C, Chandigarh and he gave power of attorney to his father for executing documents to that effect, as he was on the ship while performing his duties. Opposite parties No.1 & 2 duly gave permission to mortgage flat No.96 with the said Bank for taking the loan. His father also signed the loan documents, being co-sharer. Later on, sale deed of the said flat was executed between the complainant and opposite parties No.1 & 2 in the office of Sub- Registrar, Kharar on 22.04.2013 and the draft of ₹34,90,000/- and cheque of ₹2,40,000/- were handed over to them on the same day. A sum of ₹3,27,000/- was deposited by his father in the account of opposite parties No.1 & 2, vide cheque No.590364 dated 26.04.2013. The said amount included ₹2,40,000/- as outstanding amount and ₹87,000/- as excess payment, which was kept for electricity meter charges. It was agreed that after incurring expenses of electricity meter remaining amount out of ₹87,000/- would be returned to the complainant, but no such amount was ever returned to him. Father of Consumer Complaint No.328 of 2017 5 the complainant checked the account and found that the sum of ₹2,40,000/- was not due to be paid to the opposite parties. Accordingly, he requested opposite parties No.1 & 2 not to present the cheque, as the said amount was not due and to return the said cheque, but to no effect. Opposite party No.2 verbally agreed to deliver possession of the said flat to the complainant on 31.07.2013. After execution of the sale deed, the complainant visited the site and found that opposite parties No.1 & 2 used inferior quality of material while constructing the flat, in question and there was no modular kitchen, complete bathrooms, paint, tiles and windows, as promised. On approaching opposite party No.2, he assured to remove the said defects. The possession of the said flat was delivered to the complainant on 05.09.2014 and the Possession Letter issued by the opposite parties showed that all the dues had been cleared. Thereafter, the complainant, along with his parents, started residing in the flat, in question, but found that there were various defects, as mentioned above, therein and the flat was not completed/developed as per the agreement. The kitchen was simple. Doors, tiles and windows were of inferior quality. There was leakage and seepage at many places. On request, opposite party No.2 visited the site, along with his workers, and assured to remove the above said defects, but to no effect. The complainant again visited the opposite parties on 01.03.2015, but they refused to get the work done. Later on, during the meeting with the father of the complainant, opposite party No.2 agreed to return the total price of the flat, along with 24%, besides the amount Consumer Complaint No.328 of 2017 6 spent on affixation of 'A' class material in the flat, but the same was not done by him. The complainant sent legal notice dated 01.04.2015 to opposite parties No.1 to 3, requesting them to remove the deficiencies mentioned above, but to no effect. Opposite parties No.1 & 2 disconnected the electricity meter installed in the flat, in question, and retained the same with them. They got released new electricity meter in the flat, in question, only after receiving payment of ₹17,500/- from the complainant. The aforesaid act and conduct of the opposite parties amounted to deficiency in service and unfair trade practice on their part. It was further averred that earlier the complainant filed complaint before District Forum, Mohali, bearing No.CC/238/2015, in which Local Commission was also appointed, who after visiting the spot submitted his report. However, the said complaint was withdrawn from the District Forum, in view of the judgment of the Hon'ble National Commission in case Ambrish Kumar Shukla & Ors. v. Ferrous Infrastructure Pvt. Ltd. Hence, this complaint.
2. Upon notice, opposite parties No.1 to 3 did not appear, despite their service and were proceeded against ex parte, vide order dated 15.06.2017. However, later on 01.09.2017, Sh. Pardeep Sharma, Advocate, appeared on behalf of opposite parties and he was allowed to join the proceedings. There is no reply to the complaint on behalf of the opposite parties on the record.
Consumer Complaint No.328 of 2017 7Evidence of the complainant
3. To prove his claim, the complainant tendered in evidence affidavit of Sh. Kulbhushan Sood, his attorney, as Ex.C/A, along with documents Ex.C-1 to Ex.C-81.
Contentions of the Complainant
4. We have heard learned counsel for the complainant, as none appeared on behalf of the opposite parties at the time of arguments. We have also gone through the record carefully.
5. Learned counsel for the complainant contended that the opposite parties failed to develop the flat, in question, as per the standards agreed between the parties. There is no modular kitchen in the flat, as it contains a simple kitchen. The material used in the construction of the flat, in question, is of inferior quality. There is seepage in many places in the flat, in question. Even there is no drainage system therein. Windows, doors and walls were not properly painted. The defects in the flat could not be removed even by the workmen of the opposite parties, who visited the spot to remove the same. Even the opposite parties disconnected the earlier electricity meter installed in the flat and allotted new connection after receiving ₹17,500/- from the complainant wrongly, in order to harass him. The complainant is entitled to compensation for the mental agony and harassment suffered by him at the hands of the opposite parties. The opposite parties have not contested the complaint, as they are at fault and they have nothing to say in their defence. It was, thus, contended Consumer Complaint No.328 of 2017 8 that the complaint may be allowed and all the directions, as prayed for therein, be issued to the opposite parties.
Consideration of Contentions
6. We have given our thoughtful consideration to the arguments advanced by the learned counsel for the complainant.
7. Undisputedly, vide Agreement to Sell dated 14.12.2012, Ex.C-2, the opposite parties initially allotted to the complainant Flat No.13, Top Floor, consisting of drawing, dining, three bedrooms, modular kitchen, three toilets, having super area of 1300 sq.ft., along with 1/3rd un-partitioned share of land measuring 35 sq.yds. out of the land bearing Khewat Khatooni No.300-380, Khasra No.33//11/18/1 (4-
11) situated at MAA (NEW) Shimla Homes (Part-I), Hadbast No.33, Tehsil Kharar, District SAS Nagar. The total cost of the said flat was ₹34,00,000/-. The complainant paid ₹8,20,000/- at that time to the opposite parties, vide receipt dated 14.12.2012, Ex.C-3. However, on inspecting the said flat by the complainant, along with his father, several defects were found therein, such as leakage in rooms, bathrooms, no proper drainage system etc. The opposite parties admitted their fault and in lieu of flat earlier allotted, they offered another flat to the complainant i.e. flat No.96 (Duplex), Ist and 2nd Floor, consisting of drawing, dining, three bedrooms, modular kitchen, four ready toilets, having super area of 2500 sq.ft., along with 1/3rd un- partitioned share of land measuring 70 sq.yds. out of land bearing Khewat Khatooni No.189-225, Khasra No.33//13/1 (2 kanal 0 marla) situated in their above said project. The total cost of the said flat was Consumer Complaint No.328 of 2017 9 ₹45,50,000/-. The amount of ₹8,20,000/- paid by the complainant towards the price of earlier flat was adjusted towards the price of the alternative flat allotted to the complainant, as per receipt Ex.C-5. Regarding the sale of other flat, Agreement to Sell, Ex.C-4, was duly executed between the parties on 13.03.2013. Allotment letter dated 13.03.2013, Ex.C-6, allotting Flat No.96 in favour of the complainant was duly issued. The complainant raised Home Loan to the tune of ₹39,67,000/- from HDFC Bank, vide Home Loan Agreement Ex.C-9, for making payment of the sale consideration of the flat to the opposite parties, by mortgaging the flat, in question, with the said Bank.
8. As per Possession Letter dated 05.09.2014, Ex.C-11, the opposite parties delivered the possession of the flat, in question, to the complainant and it is duly mentioned in that letter that the opposite parties have received full and final payment against the above said flat. It is the categorical version of the complainant that when he, along with his family, started residing in the said flat, he found that the inferior quality material was used by the opposite parties while constructing the same. The kitchen was simple and not modular kitchen. Doors, tiles and windows were also of inferior quality. There was leakage and seepage at many places. Even there was no drainage system in the flat, in question. The complainant has produced on record the photographs Ex.C-12 to Ex.C-70, the perusal of which clearly indicate that the construction of the flat, in question, has been raised by the opposite parties in a casual manner and there are so many defects in the flat, in question. The complainant served legal notice dated Consumer Complaint No.328 of 2017 10 01.04.2015, Ex.C-72, upon the opposite parties with a request to rectify the defects and deficiencies mentioned therein and to pay compensation, but to no effect. The complainant, who is working in Merchant Navy, remained on ship for most of the time and in his absence, his father had been visiting the the opposite parties with the request to rectify the defects in the flat, in question, but to no effect. All this evidence led by the complainant has not been rebutted by the opposite parties, as there is no reply to the complaint nor there is any evidence led by the opposite parties.
9. The present matter was earlier agitated by the complainant, by filing complaint before District Forum, Mohali, which was withdrawn by the complainant, as per order dated 21.03.2017 of the District Forum. During the pendency of the said complaint, on the directions of the District Forum, Local Commissioner was appointed with a direction to visit the spot and submit his report. He submitted his detailed report, Ex.C-80, in which it is mentioned that there is no electricity in the duplex of the complainant and tap of water main line connection to duplex is broken. The marble of step No.2 of common outer side staircase of 2nd floor to 3rd floor are broken. The water tank of the complainant's flat is caped with one piece of tile. The whitewash on the walls seems to be very old and appears to be not finished properly. Wooden doors and window are not properly painted. Shora (fungus) was seen on the walls and roofs of rooms on both floors. The Local Commissioner also clicked the photographs, numbering 1 to 95, and produced the same on record, in support of his report. Consumer Complaint No.328 of 2017 11
10. 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 agree 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. No amount of proof can substitute pleadings, which are the foundation of the claim of the parties. In the present case, initially the opposite parties have not appeared, despite service and were proceeded against ex parte. There is no reply to the complaint on behalf of the opposite parties. Even there is no evidence led on behalf of the opposite parties to rebut the evidence of the complainant. As such, the evidence adduced by the complainant remains unrebutted.
11. All the above facts and circumstances prove that the opposite parties failed to complete/develop the flat, in question, as per the agreement and promises. The dilapidated condition of the flat, in question, can very well be imagined from the photographs, Ex.C-12 to Ex.C-70, produced by the complainant as well as by the report of the Local Commissioner, Ex.C-80, supported by photographs numbering 1 to 95, as mentioned above. The complainant has already paid the entire amount towards the price of the flat, in question, to the opposite parties, by taking loan from the Bank and he is repaying the loan instalments. Despite payment of entire amount to the opposite parties Consumer Complaint No.328 of 2017 12 towards the price thereof, he is not in a position to enjoy the joyful living in the flat, in question, due to various defects and deficiencies therein, which the opposite parties have failed to remove, in-spite of his repeated requests. It is also relevant to mentioned here that the flat, earlier allotted to the complainant, was also not fit for human habitation as that flat also lacked proper construction and facilities and admitting their fault, the opposite parties offered another flat (present flat) to the complainant. The opposite parties are liable to remove the various defects pointed out above in the flat, in question, at their own expenses; as they allured the complainant to purchase the flat from them by mis-representation. The complainant suffered mental tension and harassment due to the above enumerated acts of omission and commission on the part of the opposite parties, for which he is entitled to suitable compensation.
12. In view of our above discussion, the complaint is allowed and following directions are issued to the opposite parties:
i) to rectify the following defects/make up deficiencies and to use the material, as promised by them at the time of executing the Agreement to Sell dated 13.03.2013:
a) to complete the work;
b) to provide the modular kitchen;
c) to complete the bathroom with drainage system;
d) to paint the windows, doors as well as walls;
e) to change the broken tiles;
f) to rectify the water seepage at various places; Consumer Complaint No.328 of 2017 13
g) to replace current doors and windows by affixing teakwood;
h) to install separate electricity meter in the flat;
i) to construct proper roads leading to the house, if not already constructed;
j) to provide the drainage system on the kachha road, which are made of soil;
ii) to provide jamabandi, tatima, approved maps, which opposite parties should have submitted to the Bank for loan approval;
iii) to pay ₹2,00,000/-, as compensation on account of mental tension and harassment caused to the complainant; and
iv) to pay ₹22,000/- towards litigation expenses.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (MRS. KIRAN SIBAL) MEMBER October 13, 2017.
(Gurmeet S)