State Consumer Disputes Redressal Commission
Devika Infrastructure Pvt. Ltd. vs Shimla Apartment Welfare Housing ... on 22 December, 2015
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.700 of 2014
Date of Institution: 10.06.2014
Date of Decision : 22.12.2015
1. Devika Infrastructure Private Limited, SCO no.15, Green
Enclave, Daon, Tehsil and District S.A.S. Nagar, Mohali,
through its Director Sh. Rohit Sondhi.
2. Rohit Sondhi S/o Sh. Sushil Kumar Sondhi R/o 587, Sector 16-
D, Chandigarh earlier R/o #610, Sector 49-A, IAS/IPS Society,
Chandigarh, Director of Devika Infrastructure Private Limited,
SCO No.15, Green Enclave, Daon, Tehsil and District S.A.S.
Nagar, Mohali.
.....Appellants/opposite parties
Versus
Shimla Apartment Welfare Housing Society, registered office Flat
no.34, Ground Floor, Shimla Apartment, Raman Enclave, Sector
117, Mohali, through its President Sh. Amit Joshi (earlier President
Sh. O.P. Pathak).
.....Respondent/complainant
First appeal against order dated
08.07.2013 passed by the District
Consumer Disputes Redressal
Forum, S.A.S. Nagar, Mohali.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Shri H.S. Guram, Member.
Present:-
For the appellants : Sh. Munish Goel, Advocate For the respondent : Sh. Rakesh Sharma, Advocate ................................................... J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The appellants of this appeal (the opposite parties in the complaint) have directed this appeal against the respondent of this appeal (the complainant in the complaint), assailing order dated 08.07.2013 of District Consumer Disputes Redressal Forum Mohali (in short the "District Forum"). Vide order dated 24.09.2014 this First Appeal No.700 of 2014 2 Forum held the appeal to be barred by time and dismissed the same in limine. The matter was taken up before the National Commission in revision petition no.3916 of 2014 against this order and Hon'ble National Commission vide order dated 21.05.2015 set aside the order of this Commission and condoned the delay on payment of Rs.25,000/- as costs. The cost was paid and appeal was brought on the record as first appeal no.700 of 2014, as per above order of the National Commission.
2. The complainant Shimla Apartment Welfare Housing Society instituted the complaint under Section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that complainant society is named as Shimla Apartment Welfare Housing Society registered under the statutory provisions of Societies Registration Act, 1860 having its registered office at Flat No.34, Ground Floor, Shimla Apartment, Raman Enclave, Sector 117, Mohali. OP no.1, Devika Infrastructure Private Limited being the developer through its director and authorized representative Sh. Rohit Sondhi, OP no.2 advertised for residential colony comprising plots/independent houses and so on. The developer OP no.1 launched a project to construct a residential colony comprising plots/independent houses as well as flats/floors on the plot of land with amenities to be provided therein. The extensive advertisement issued by the Developer regarding the above mentioned project, which induced the general public to invest in the above mentioned project. The members of the complainant society were influenced by First Appeal No.700 of 2014 3 the advertisements issued by the development and variously applied for independent houses/flats/floors, as per their individual requirements. The OPs have not provided the below noted amenities to the members of the complainant society at the time of delivery of possession:
i. Lack of proper & efficient drainage system to harness the rain water/ inadequacy of rain water harvesting system. In his own wisdom, the Developer has failed to put up support system in place to check the overflow of overhead water tanks placed on the roofs. ii. The Developer has miserable failed to provide a proper security system in place at the premises. There is no boundary wall or security gate in the society, thereby making it easy for the un-scrupulous elements to roam freely in society. This causes a lot of nuisance to the residents, as there is no check to entry of outsiders into the premises.
iii. The premises in question comprises of Flats/Plots and independent Floors. The pathways/roads constructed are of poor quality, so much so the road in from flat no.1 to 16 has been completely destroyed during the course of construction activities undertaken by the Developer and hence needs immediate re-carpeting. The potholes on the said road are a cause of continuous nuisance to the residents.First Appeal No.700 of 2014 4
iv. The Electric Infrastructure has been shabbily put up to the detriment of the residents. The electricity connections to the Independent Houses & Flats are without proper earthing and same needs immediate attention to avoid any un-toward incident.
v. The actual area of the independent houses & flats is not at par with the Registered Sale Deeds. The shortfall in the actual area requires to be compensated by the Developer. The residents are entitled to claim differential amount in lieu of the shortage of actual area.
vi. The power supplied provided to the residents of Flat no.1 to 16 are not underground. The wires are hanging lose, which is an area of concern as this could lead to any untoward incident, resulting into material or human loss. All such power supplies/lose hanging wires from the meter to the mains of each individual flat should be made underground immediately.
vii. There is no fire-fighting system installed in the society, as promised by the Developer. Fire-fighting system strictly as per the norms issued by the Fire Department should be installed immediately so as to prevent any mishap. viii. There is no proper system to provide water to each individual house. The Developer has promised round the clock water supply at the time of selling the Flats/Independent houses, but much to the chagrin of the First Appeal No.700 of 2014 5 residents, even the bore-well installed require immediate attention. The current set-up for providing the water to the residents is of such poor quality that seepage at many places has damaged the parts of the building, Even the water being supplied to the residents is of poor quality, with very high level of contamination which is harmful for the residents and can lead to steady decline in health of the residents & particularly affecting the children.
ix. The construction carried out is of poor quality. Stair case leading to the top has not been properly shielded to stop rain water oozing out into stairs, thus causing immense nuisance to the residents, particularly during rains. The members of the complainant society purchased the independent houses/flats with an intention to live there on the allurement of the developers. The developers are guilty of unfair trade practice and restrictive trade practice. The shortcomings, as pointed above were not removed by the OPs in this regard. The complainants have, thus, prayed that OPs be directed to complete the amenities, as promised by the developer in accordance with provisions of Punjab Apartment and Property Litigation Act 1995 and Rules and Regulations framed thereunder. The complainant also prayed that OPs be directed to pay an amount of Rs.5 lakhs as compensation towards mental and physical harassment suffered by the members of the complainant society and Rs.15,000/- as litigation expenses. First Appeal No.700 of 2014 6
3. Upon notice, OPs appeared and filed written reply and contested the complaint of the complainant vehemently. It was averred in preliminary objections that complaint is not maintainable because the complainant is not the consumer of the OP. The complainant has not hired or availed the services of the OPs and not purchased any good from OPs. The complainant never entered into any contract with OPs as registered society and there is no privity of contract between the complainant and the OPs. On merits, it was pleaded by the OPs that it is a Private Limited Company engaged in the business of construction and selling apartments to the purchasers directly. The complainant has not disputed the provisions of Punjab Apartment Ownership Act, 1995, which is not alleged to be not applicable to facts in this case. The land on which construction was done by the OPs falls within the municipal limit of Kharar and said plan and other formalities of the above constructions were duly obtained from the Municipal Committee Kharar. The locus-standi of O.P. Pathak and Amit Joshi was stoutly questioned by the OPs in this case. The OPs denied that it launched a project of residential colony and issued extensive advertisement to general public. The OPs further denied the shortcomings or deficiency in service as pleaded in the complaint by the OPs. The OPs prayed for the dismissal of the complaint.
4. The complainant tendered in evidence affidavit of O.P. Pathak Ex.CW-1/1 alongwith other documents Ex.C-1 to Ex.C-13 and closed the evidence. As against it, the OPs tendered in evidence First Appeal No.700 of 2014 7 affidavit of Rohit Sondhi Ex.RW-1/1 and closed the evidence. On conclusion of evidence and argument, the District Forum S.A.S. Nagar, Mohali accepted the complaint of the complainant partly by directing OPs to provide basic amenities, as prayer clause no.ii (a),
(c), (d), (f), (g), (h) and (i) of the complaint within a period of three months from the date of order. It further directed the OPs to pay compensation of Rs.2,00,000/- to the complainant for mental harassment and Rs.15,000/- as costs of litigation.
5. We have heard the learned counsel for the parties and have also examined the record of the case. The District Forum has directed the OP to provide the facilities as contemplated in clause no.ii (a), (c), (d), (f), (g), (h) and (i) to the members of the complainant society within a period of three months. We have examined the material evidence adduced on record by the parties. Ex.CW-1 is the affidavit of O.P. Pathak President of complainant society. Ex.C-1 is the copy of certificate of registration of societies of the complainant society proving that it was registered on 28th June 2011-2012. Ex.C-2 is the copy of resolution dated 02.06.2012 passed by the complainant society authorizing O.P. Pathak and Amit Joshi to file the complaint. Ex.C-3 to Ex.C-10 are the photographs of the apartments placed on the record. Ex.C-11 is the copy of advertisement. E.C-12 is the copy of site plan. Ex.C-13 is he copy of sale deed dated 14.03.2011 executed by OP in favour of Amit Kumar Joshi, who is the Secretary of the complainant society. To counter this evidence, the OPs placed on record affidavit of Rohit Sondhi First Appeal No.700 of 2014 8 Director of OP no.1 is Ex.RW-1/1. He has stated that Amit Kumar Joshi, the Secretary of the complainant society has been acting as commission agent and giving adds in the newspapers to sell aforesaid apartments, vide annexure Ex.C-4 with a mobile number 85689-21000 on the record.
6. From critical analysis of evidence on the record, we are of this view that complex questions of facts and law are involved in this case, which cannot be adjudicated in summary manner by the Consumer Forum. There is no report of architect or the affidavit of the architect on the record to prove the averments. No agreements of sale or the sale deeds of the members of the society have been placed on the record by the complainant society in this case. Even the sanctioned site plan of the apartments by the competent authority has not been brought on the record by the complainant. The complaint has been filed by Shimla Apartment Welfare Housing Society, which was registered after execution of sale deed in favour of Amit Kumar Joshi Ex.C-13 on the record. The submission of OPs is that there is no privity of contract with the above said society, which was non-existent at the time of sale deed executed in favour of Amit Kumar Joshi, vide Ex.C-13. In the absence of sanctioned site plan and agreements of sale executed by the OPs in favour of different apartment holders or sale deeds executed in their favour. It is difficult for us to come to the correct conclusion in this case. We find that complex matter is involved in this case, which cannot be adjudicated in summary manner by the Consumer Forum. The First Appeal No.700 of 2014 9 appropriate Forum is competent Civil Court because voluminous evidence would be required to adjudicate the matter in controversy in this case. There would be reports of experts and many other reports and documents to find out the alleged shortcomings in this case
7. As a result of our above discussions, we hold that the order of the District Forum Mohali dated 08.07.2013 cannot be sustained and the same is reversed in this appeal. The appeal is accepted as filed by the OPs now appellants and complainant society now respondent of this is relegated to get their matter adjudicated from competent Civil Court in accordance with law.
8. The appellants of this appeal had deposited the amount of Rs.25,000/- with this Commission at the time of filing the appeal and further deposited Rs.1,23,000/- in compliance with order of this Commission. Both these amounts alongwith interest, which accrued thereon, if any, be remitted by the Registry to the appellants of this appeal by way of a crossed cheque/demand draft after the expiry of 45 days.
9. Arguments in this appeal were heard on 10.12.2015 and the order was reserved. Now the order be communicated to the parties. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR)
PRESIDING JUDICIAL MEMBER
(H.S.GURAM)
December 22, 2015 MEMBER
(MM)