State Consumer Disputes Redressal Commission
Jasbir Singh Walia vs M/S Achievers Builders Private on 11 November, 2022
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA PANCHKULA Consumer Complaint No.570 of 2017 Date of the Institution: 14.09.2017 Date of final hearing: 09.08.2022 Date of pronouncement: 11.11.2022 Jasbir Singh Walia S/o Lt. Sh.Hazara Singh Mrs.Ravinder Kaur W/o Jasbir singh Walia Both residents of R/o villa No.4578, Kalindi Hill, Sector 49, Faridabad. .....Complainants Versus M/s Achievers Builders Private Ltd. Company registered under the Company Act, 1956 through its authorized person/signatory having office at Kalindi Hills, Achievers Mall,Sector-49, Faridabad 121001. Shri Vijay Bhardwaj, director of M/s Achievers Builders Private Ltd. company, Kalindi Hills, Achievers Mall, Sector-49, Faridabad 121001. Jagdish Lal Bhatia, Director of M/s Achievers Builders Private Ltd. company, Kalindi Hills, Achiever Mall, Sector 49, Faridabad 121001. Hari Singh, (Achievers Supervisor) office at Kalindi Hills, Achievers Mal,Sector-49, Faridabad 121001. .....Opposite Parties CORAM: S.P.Sood, Judicial Member Suresh Chander Kaushik, Member Present:- Mr. G.S.Duhan, Advocate for the complainant. Mr.Saurabh Gautam, Advocate for the opposite party Nos.1 and 2. Mr. Raghav Kapoor proxy counsel for Mr.S.K.Budhiraja, counsel for opposite parties No.3 and 4. (Defence struck off vide order dated 15.01.2020). O R D E R
S P SOOD, JUDICIAL MEMBER:
The brief facts giving rise for the disposal of the present complaint are that they (complainants) are citizen of America and wanted to buy a residential apartment/flat in or near Faridabad for the personal use and settlement in India with their family. On 23.09.2011, they applied for the allotment of a unit/apartment in Achievers Gardenia at Kalindi Hills, Palli Road,v Sector 49 Faridabad, Haryana. OP Nos.1 to 3 vide agreement dated 23.09.2011 allotteed an independent floor No.4400-C second floor with roof right having saleable area of approximately (equivalent to 1529.49 sq. ft) to be constructed on plot No.4400-C in the project of OPs at a basic sale price of Rs.62,75,000/- The total price of the floor was Rs.64,38,000/-, which includes one time maintenance charges, club charges and power back up. They opted construction linked payment plan. As per terms of buyer agreement, the possession of the flat was agreed to be handed over to them within a period of two years from the date of booking of the flat. On 29.09.2011, Apartment buyer's agreement was executed between the parties. The complainants took possession of the flat after paying the penalty imposed by the OP in October, 2015. However the construction quality of the flat was very poor and was not fit for living. Its architectural design was fully wrong which was also accepted by builder and the architect, the pergola was open causing all rain water, dust etc. inside the flat. All the doors were having more than 2 inches gap from floor, rain water and dust were free to enter from all sides. All the wooden work was not as per specification. Bath fittings and tiles were not proper. There was water drainage problem and lifts were not installed as per advertisement. They continued to deposit the payments as per plan but were not handed over the possession within the stipulated 24 months. They received the letter regarding intimation of possession dated 17.03.2015 vide which the OPs demanded an additional amount which of course was beyond the agreed price. OPs also demanded Rs.75000/- through letter dated 01.06.2012 for additional bath room and forced them to pay the huge additional amount without their consent even without any increase in the actual unit area due to which the complainants felt harassed. They had already paid more than 90% of the price of the flat, and they requested the OPs to remove the deficiencies, but on 16.10.2015, latter flatly refused to do the needful. The complainants brought it to the notice of the OPs that in March, 2014 when they were allowed to see the unit/apartment for the first time, they were shocked to see that the entire flat in which their unit was located was unfinished and in unusable state, with no elevators and apartment was also in unfinished and incomplete. After waiting any satisfactory reply, the complainants were constrained to write a detailed email dated 05.04.2015, 22.05.2015, 24.05.2015, 25.05.2015 & 26.05.2017 voicing about the defective services in construction and finishing of the unit. The photographs showing defects in the unit/apartment also support their feelings. The unit was handed over vide unit handover letter dated 20.10.2015 with unsatisfactory & utterly deficient state and nowhere matched the sample flat, which was shown to the complainants at the time of booking and also without adjusting the compensation for delay in handing over the possession. There was no provision of the facilities as proposed by the OPs including health club facilities with fully equipped gym fitted with cable TVs, Jacuzzi, dance and aerobics sections, sports facilities with tennis courts, swimming pool with baby splash, shower and changing arrears, club with lounge, volley ball court, cycling lane for children, billiards/pool room, card room, multi purpose community hall and multi cuisine restaurant, kind crèche with tot lots, seesaws, sand pit, baby slides party area and Mini Cineplex. The electrical points were without power rendering these useless. The fire detection systems and fire sprinklers were not in working condition. There was no installation of CCTV/Surveillance system or were non operational. The complainant itself called the technical person who inspected the flat and found these shortcomings. The complainants were unable to live in the flat without necessary amenities. After inspection the concerned person estimated the value of work nearly worth Rs.14,31,230/- which was unacceptable to them. Thus there was deficiency in service as well as unfair trade practice on the part of the OPs, hence this complaint.
2. Upon notice. OPs filed reply and it was admitted that there was a short delay in delivery of possession of the unit on account of some unavoidable circumstances and OPs adjusted the balance dues of the complainant with interest at the time of taking possession. The delay in delivery was mere of eleven months which was stated as that of 54 months in the wild imagination in the complaints. The present complaint was beyond period of limitation as the complaint was filed on 13.09.2017 with possession of unit admittedly already offered to complainants on 17.03.2015. All the basic facilities and amenities as advertised and contained in the broucher have adequaltely been provided except swimming pool which was under contemptlation. The complainants was duly accommodated by adjusting the calculated penalty for eleven months delay by reducing the payment of interest of Rs.1,64,512/- being due on account of delay in payments made by complainant charging only Rs.74,556/- as depicted in the statement of account sent to the complainant vide regd. speed post dated 01.04.2015 and accepting the same as correct including adjustment of penalty the complainant had made payment of Rs.1,58,826/- including the above reduced interest and cost of additional toilet being Rs.84,270/-. The complainants failed to make all the schedule payment of installments in time. In the advertisement, plan lift was given in respect of the floors built on 222 sq. yds area and not on 200 sq yds area. It was submitted that possession was offered in March, 2015 after completion of the unit, but complainant preferred to take the possession in October, 2015 for the reasons best known to them which fact they have concealed. The complainants visited the unit after receipt of offer of possession letter dated 17.03.2015 and they did not find fault in the construction and remained dormant for six months and came forward to take possession in October 2015, which also has been concealed by him. The unit was completed by April 2015. Offer of possession Letter dated 17.03.2015 dispatched on 18.03.2015 and received by the complainant on 20.03.2015. The estimate of Rs.14,31,230/- allegedly made for making the unit worth living was widely imaginary in the face of all other residents of other floors living comfortably in their respective units. Thus there was no deficiency in service on the part of the OPs.
3. The complainants also filed rejoinder. It was submitted that complaint has been filed before the police authorities and after investigation, the policy has registered a criminal case bearing FIR No.108 under section 120, 420, IPC dated 01.02.2018. It was also submitted that the OPs handed over the possession on 20.10.2015 after a delayed period of more than two years. Besides this complainants have reiterated the facts mentioned in the complaint and denied those of the written version.
4. When the complaint was posted for recording evidence of one of the complainant, learned counsel for complainant tendered in evidence affidavit of one of the complainant-Mr.Jasbir Singh Walia Ex.CA vide which he has reiterated all the averments taken in the complaint and further tendered the documents Ex.C-1 to ExC-22 and closed his evidence.
5. Contrary to this, learned counsel for the opposite parties tendered in evidence affidavit of Vijay Bhardwaj,Director of OPs as Ex.OP1 &2/RA vide which he has reiterated all the averments taken in the complaint and further tendered the documents Ex.OP1&2/1 to Ex. OP1 &2/13 and close the evidence on behalf of the OP Nos.1 and 2.
6. This argument has been advanced by G.S.Duhan, learned counsel for the complainants as well as Mr. Saurabh Gautam, Advocate for the opposite parties No.1 and 2 and Mr. S.K.Budhiraja, Advocate for opposite party No.3. With their kind assistance entire record including documentary evidence as well as whatever the evidence had been led during the proceedings of the complaint by the parties have also been properly perused and examined.
7. As per the basic averment taken in the complaint and contentions raised by the learned counsel for the complainant, the foremost question which requires adjudication by this Commission is as to whether the present complainant is entitled for Rs.3506400/- for all the deficiencies and interest etc. mentioned in the complaint.?
8. While unfolding the arguments, it has been argued by Sh. G.S.Duhan, learned counsel for the complainants that buyers agreement dated 29.09.2011 EX.C-1 is not in dispute. It is also not in dispute that as per buyer agreement Ex.C-1, the basic price of the flat as per schedule was Rs.62,75,000/-. The complainant paid all the amount demanded by the O.Ps on different dates. As per one of the term of the agreement the OPs had agreed to deliver vacant possession of the flat to the complainant within a period of two years from the date of booking of the flat with a grace period of 6 months i.e. by the end of 29th March, 2014, failing which OPs were bound to pay Rs.5/- per sq. ft. per month to him. On 20.10.2015, the actual physical possession was handed over to them. The complainant requested the OPs to remove the various deficiencies as well as delayed interest, but, to no avail.
9. On the other hand, learned counsel for the OPs vehemently argued that the complainants visited the unit after receipt of offer of possession letter dated 17.03.2015 and they did not find any fault in the construction and remained silent for six months and came forward to take possession in the month of October 2015. The unit was completed by April 2015. Offer of possession Letter dated 17.03.2015 dispatched on 18.03.2015 and received by the complainant on 20.03.2015. It was further submitted that the short delay in delivery of possession of the unit occurred on account of unforeseen/unavoidable circumstances and were duly accounted for and adjusted in the balance dues of the complainant. The delay in delivery was merely of eleven months and not 54 months as alleged. The allegation of deficient service and unfair trade practice and not providing facilities and amenities promised in the agreement were false and untrue perhaps cooked by the complainants so deserves rejection.
10. In view of the above submission and after careful perusal of the entire record, it is not in dispute that upon floating a project by the builders, apartment was purchased by the complainants for a cost of Rs.64,38,000/- against which an amount of Rs.6736741/-(Ex.C-4) was paid. Buyer agreement is also not disputed. As per buyer agreement, the possession of the flat was to be delivered within period of 24+6=30 months complete subject to some reservation. OPs letter dated 17.03.2015 i.e. offer of possession was sent to the complainants, however, the latter did not opt to accept the same. Vide letter dated 16.10.2015 written by complainants that some items required to be replaced which of course were attended immediately, which is as under:-
"1. All three Toilets are old, used and needed replacement with new.
Paint are palling out from toilets and rooms Water seepage in two bath rooms.
On 26.10.2016, the complainant again wrote letter to the OPs and informed that he can move in the flat and before moving some items required to be repaired i.e.:
All the doors are having gap, causing dust, rain water and insets through gap. Window panels are found crack and cannot get close. Water chocking in the bath room and sink.
Rain water through open, as there is no shed for the rain water protection."
11. Perusal of several email and letters of the complainants reveals that they were not satisfied with the services of the OPs. The OPs should have acted and worked as per the brochure and as well as for buyer agreement. It is admitted by the OPs that only some delay has been occurred due to some unavoidable circumstances and delayed possession interest was adjusted towards the account of the complainants. Perusal of emails regarding discussion and agreement clearly shows that the residents living in the society have faced lots of problems evident from Ex.C-9 and C-10. Perusal of the photographs shows that masonary work on the wall was not proper and not as per specification. The photograph also shows that the windows were not fixed properly. The complainant have taken over the possession as per Ex.C-16 dated 20.10.2015. The opposite parties admitted the delay in handing over the possession for 11 months, but not for 54 months. The complainant are entitled for compensation on account of delay of delivery. Resultantly, the delivery of possession or completion of the project was delayed as in the present case. When the project was not complete before 2015 as such, this Commission is of the considered opinion that there was deficiency in service and unfair trade practice on the part of opposite parties and thus, complainants are well within their legal rights to get the interest @ 6% per annum on the deposited amount with the OPs from the date of respective deposits till realization. In case, there is a breach in making payment within the stipulated period of 30 days, in that eventuality, the complainants would further be entitled to get the interest @ 9% per annum, for the defaulting period. The opposite parties are also directed to charge maintenance charges after 20.10.2015 when the complainants handed over the physical possession of the floor in question. The opposite parties are also directed to remove the following defects free of costs:
"1. All three Toilets replacement with new one alongwith bathroom tiles.
Floor painted as per consent of complainant Repair the Water seepage in two bath rooms.
Repair the all the doors having gap.
Repair the window panels.
Repair the water chocking in the bath room and sink."
The OPs are also directed to repair the tarace garden area and pergola area free of costs. The complainants are also entitled of Rs.50,000/- (Fifty Thousand Only) for compensation of mental and physical agony. In addition, the complainants are also entitled of Rs.25,000/- (Twenty Five Thousand Only) as litigation charges. It is also made clear that for non-compliance, the provisions enshrined under section 72 of the C.P.Act would also be attractable.
12. Applications pending, if any stand disposed of in terms of the aforesaid order.
13. A copy of this order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The order be uploaded forthwith on the website of the commission for the perusal of the parties.
14. File be consigned to record room.
November 11th, 2022 Suresh Chander Kaushik, S.P.Sood Member Judicial Member S.K.(Pvt.Secy)