State Consumer Disputes Redressal Commission
Deepinder Kaur Daughter Of Late Shri ... vs Motia Developers Pvt. Ltd., on 23 January, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH
First Appeal No. 1674 of 2012
Date of institution : 26.12.2012
Date of Decision : 23.1.2013
Deepinder Kaur daughter of late Shri Saran Singh, resident of Apartment of 602, 6th
Floor, 1st Tower, Motia Heights, Dhakoli, NAC Zirakpur, District SAS Nagar.
....Appellant.
Versus
Motia Developers Pvt. Ltd., K-Area Road, Near Gurudwara Pauli Sahib, Dhakoli, NAC
Zirakpur, District SAS Nagar through its Managing Director.
...Respondent.
First Appeal against the order dated 8.11.2012 of the District
Consumer Disputes Redressal Forum, SAS Nagar (Mohali).
Before:-
Shri Piare Lal Garg, Presiding Member.
Shri Jasbir Singh Gill, Member.
Present:-
For the appellant : Sh. Rajiv Kataria, Advocate PIARE LAL GARG, PRESIDING MEMBER:
This is an appeal filed by the appellant/complainant-Deepinder Kaur(hereinafter called 'the appellant') against the order dated 8.11.2012 of the District Consumer Disputes Redressal Forum, SAS Nagar (Mohali)(hereinafter called the 'District Forum') vide which the complaint of the appellant was dismissed by the District Forum.
2. Brief facts of the case are that the appellant purchased Apartment No. 602 at 6th Floor in First Tower from the respondent known as Motia Heights, Dhakoli, Notified Area Committee, Zirakpur, District SAS Nagar (Mohali) known as "Pent-house" on the top floor of the Tower as per allotment letter dated 20.12.2010 for an amount of Rs. 30 lacs. She has further alleged that it was assured by the respondent that the apartment was complete in all respects and bears no defect. Under the bonafide belief, she took the possession of the apartment in February, 2011.
First Appeal No. 1674 of 2012 2
3. It was further pleaded that in the Moonson Season of the year 2011 the appellant found that there was constant and persistent leakage at different places in the Apartment and in the rain, she was forced to remove her dinning table and other furniture from the dinning area adjoining the kitchen. The complete floor of the area was also flooded with the rain water. Water also entered from the door of staircase which open into the open area on the roof court yard, as such, there were inherent defects in the design of the building. From the entrance of the rainy water, the expensive furniture and carpets were also damaged to the tune of Rs. Three lacs.
4. There was seepage of water from the roof into wall of the staircase area. The roof of the staircase was also defective which was made of some sheets instead of RCC against the specifications and design assured by the respondents to the appellant before the purchase of the apartment by the appellant. The sheets also radiate lot of heat during summer causing heat up of the entire house and put excess load on the air-conditioners resulting in excessive consumption of electricity.
5. It was further pleaded that design of the room on the roof area was defective, its workmanship was poor as there was space between the wall and the joinery of the window. The paint of the Wall was also damaged. It was further alleged that no warranty for the A.Cs has been provided by the respondent. The brick wall of the apartment was plastered with the plaster of paris instead of mixture of Cement and Sand. The complaint was filed with the prayer that the respondent may be directed to:-
(a) make the RCC roof on the staircase.
(b) Make necessary changes in the design of the door opening into the open roof
terrace from the staircase from where the water comes down into the dinning area and drawing area.
(c) Make a complete plastering of apartment with cement before doing it with the plaster of paris.
First Appeal No. 1674 of 2012 3
(d) Pass the warranty for minimum five years for the air conditioners installed in the apartment.
(e) (d) make necessary changes in the design of the room on the roof in which the water is seeping from the joinery of the window and the wall.
(f) Pay damages to the tune of Rs. 15 lacs on account of damages to her furniture, carpets and other household goods on account of water seeping inside, physical and mental harassment and excessive electric bills on account of radiation of heat from the roof of the staircase.
6. Upon notice, reply was filed by the respondents submitting that it was never represented to the appellant that flat in question was complete in all respects, total price of the flat was Rs. 67,44,051/- but the same was purchased by the appellant from the respondent for Rs. 30 lacs only as the same was allotted to her in un-furnished condition and the same was to be furnished by the appellant with her own expenses. Sale deed was executed and registered with the Sub-Registrar on 3.3.2011 and in the same it was mentioned that the appellant shall be bound by the terms and conditions of the allotment letter Annexure C-1. It was also mentioned in the sale deed that the appellant had inspected the apartment and she was fully satisfied before taking the possession regarding the construction of the apartment. It was also mentioned in the sale deed that she did not raise any objection regarding the quality of the work in the flat in question. In Clause 15 of the allotment letter Ex. C-1 it was clearly mentioned that after taking possession of the apartment no claim regarding the material of the building shall be raised. The possession was taken by the appellant on 31.1.2011 after satisfying herself regarding fitting/furnishing, construction quality, material used and seeing all the construction work and also executed affidavit dated 31.1.2011 to this effect. She never pointed out any deficiency or defect on 31.1.2011 as well as on 3.3.2011 at the time of taking the possession and execution of the sale deed. The appellant was running a boutique in the apartment i.e. commercial activity and was violating Clauses 16 & 24 of the allotment. No complaint regarding leakage was ever made by the appellant till filing of the complaint even though three rainy seasons had passed First Appeal No. 1674 of 2012 4 since the filing of the complaint. No complaint regarding the working of the ACs was also made by the appellant to the respondent. Plaster work was to be got done by the appellant herself and the respondent was no more liable to repair and amend (renovate) the apartment as prayed by the appellant in the complaint. There was no deficiency in service on the part of the respondent and the dismissal of the complaint was prayed.
7. Learned District Forum after hearing the learned counsel for the parties and going through the record, dismissed the complaint with cost of Rs. 2500/-.
8. Hence, the appeal.
9. We have gone through the pleadings of the parties, grounds of appeal, perused the record of the learned District Forum and heard the arguments of the learned counsel for the appellant.
10. The present appeal is filed by the appellant on the grounds that the District Forum has not appreciated the true facts of the case that there was seepage of water from the roof into wall on the stair case area and the roof of the stair case was defective and the roof had been made of some sheets instead of RCC as per the in the specifications or design as assured by the respondent before its purchase, the District Forum has mis-read the documents produced by the parties, the District Forum has not applied its judicious mind while deciding the complaint, as such, the order of the District Forum is liable to be set-aside.
11. We have perused the order of the District Forum, which was based on the documents i.e. allotment letter as well as registered Sale Deed executed between the parties.
12. We have perused the allotment letter Annexure P-2 with the appeal. The clause No. 15 of the allotment letter is relevant to decide the dispute between the parties, which is reproduced:-
First Appeal No. 1674 of 2012 5
"15. The allottee after taking possession of the Apartment, shall have no claim against the promoter/company in respect of any item of work which may be alleged not to have been carried out or completed in the Apartment or for any non-compliance of designs specifications, Building material or for any reason whatsoever."
13. The allotment letter is signed by both the parties and nowhere in the complaint, the allegations were leveled against the respondent that her signature was obtained by the respondent fraudulently or under coercion. It was also not the case of the appellant that she was not bound by the terms and conditions of the allotment letter and the same were not applicable upon her.
14. So as per the above discussion, it is specifically mentioned in Clause 15 of the allotment letter that after taking the possession no claim regarding the material, construction of the building or any other deficiency is maintainable.
15. It is also not the version of the appellant that she was not running the boutique in the said Apartment when as per Clause 16 of the allotment letter, she could not use the Apartment for any purpose other than for residential purpose and the appellant had nowhere denied this allegation of the respondent neither before the District Forum nor in the grounds of appeal. The relevant Clause 16 of the Agreement letter is reproduced:-
"16. The allottee shall not use the Apartment for any purpose other than for residential purpose."
16. So from the above allegation of the respondent, it is clear that the appellant herself had violated the terms and conditions of the allotment letter.
17. It is also not the case of the appellant that he had not inspected the Apartment before taking its possession. Even nowhere in the complaint or grounds of appeal it was pleaded as well as it was also not the case of the appellant that she was not having any alternative residential accommodation and in such circumstances, she was eager to occupy the Apartment and in such non- avoidable circumstances, she had taken the possession of the Apartment. It was also not the version of the appellant that she had raised any objection regarding First Appeal No. 1674 of 2012 6 the material/construction/quality/design of the Apartment at the time of taking the possession or at the time of execution of the sale deed..
18. It was also not denied by the appellant that the registered Sale Deed was executed between the parties on 3.3.2011 and it was also not the version of the appellant that she had not read the registered Sale Deed or her signature upon the Sale Deed were obtained by the respondents under any pressure or by coercive method.
19. As per the recitals of the sale deed and as per the findings of the District Forum, the respondent has indemnity against all claims regarding flat in question by the appellant and as per the recitals of the sale deed the appellant had admitted to comply with all the terms and conditions of the allotment letter.
20. The possession of the flat was taken by the appellant on 31.1.2011 and the sale deed was executed on 3.3.2011 i.e. after more than one month. If there were any defects in the construction of the Apartment or the design of the same as per the assurance then why the appellant got registered the sale deed in her favour from the respondent. Rather it proves that the appellant was fully satisfied with the construction and material used for the construction of the Apartment as well as design of the same and due to this reason she got executed the sale deed in her favour lateron after taking the possession as well as residing in the same and after fully satisfying herself.
21. No defect was pointed out by the appellant to the respondent on 31.1.2011 when the possession of the apartment was taken by the appellant and on 3.3.2011 when she got executed and registered the sale deed from the respondent.
22. The complaint was filed by the appellant before the District Forum on 20.7.2012 i.e. after about 1½ year from taking of the possession as well as execution of the sale deed of the Apartment. The appellant had not even First Appeal No. 1674 of 2012 7 produced an iota of evidence that she had made any complaint or lodged any objection to the respondent regarding the defects of the construction, design or use of inferior quality material in the Apartment.
23. In view of the above discussion, it is clear that the order of the District Forum is speaking one and there is no ground to interfere with the same. Even in the grounds of appeal, the appellant had not challenged the findings of the District Forum regarding the execution of the agreement, possession as well as execution of the sale deed.
24. The counsel for the appellant failed to point out any infirmity in the order of the District Forum. As such, the appeal of the appellant being without any merit is dismissed in limine and the impugned order of the District Forum is affirmed and upheld. No order as to costs.
25. The arguments in this appeal were heard on 10.1.2013 and the order was reserved. Now the order be communicated to the parties.
26. The appellant had deposited an amount of Rs. 1250/- with this Commission at the time of filing the appeal. This amount of Rs. 1250/- with interest accrued thereon, if any, be remitted by the registry to the respondent by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellant.
27. Remaining amount shall be paid by the appellant to the respondent within 30 days from the receipt of the copy of the order.
(Piare Lal Garg)
Presiding Member
January 23, 2013. (Jasbir Singh Gill)
as Member