State Consumer Disputes Redressal Commission
Amrit Chopra vs M/S Sadashiv Infrastructure on 6 August, 2018
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
Consumer Complaint No.1116 of 2017
Date of Institution: 28.12.2017
Order reserved on: 30.07.2018
Date of Decision : 06.08.2018
Amrit Chopra S/o Sh. Sardari Lal Chopra R/o Flat No.406, 4th Floor,
Tower No.3, Sadashiv Alpine Residency, Zirakpur, Punjab.
.....Complainant
Versus
M/s Sadashiv Infrastructure, through its partner Rajesh Pathak S/o
Sh. Daulat Ram Pathak, R/o 3158, Sector 51-D, Chandigarh; having
its office at SCO No.9, First Floor, Sector 7-C, Chandigarh.
.....Opposite Party
Complaint U/s 17(1)(a) of the Consumer
Protection Act, 1986 (as amended up to
date).
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Smt. Surinder Pal Kaur, Member.
Present:-
For the complainant : Sh. Amrit Chopra, in person
For the opposite party : Sh. Dinesh Madra, Advocate
.................................................................................. J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
This complaint has been instituted by complainant U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act") against OP on the premise, that he earlier filed complaint no.421 of 2012, which was dismissed by the District Forum Mohali and he preferred appeal no.181 of 2014 against the order in this Commission. The appeal was accepted by this Commission by setting aside the order of the District Forum Mohali and it sent the Consumer Complaint No.1116 of 2017 2 case to District Forum with directions to decide it on merits in accordance with law. In view of the latest judgment of Hon'ble National Commission in case titled as "Ambrish Kumar Shukla & others Vs. Ferrous Infrastructure Pvt. Ltd." in C.C. No.97 of 2016 decided on 07.10.2016, the District Forum Mohali disposed of the complaint vide order dated 30.10.2017 by returning it to complainant for want of pecuniary jurisdiction with liberty to approach the appropriate Court of law/State Commission/National Commission for redressal of his grievance. Hence the present complaint. It is averred that complainant purchased flat no.406, at "Sadashiv Alpine Residency Zirakpur from OP. OP issued allotment letter dated 25.03.2010, vide annexure C-3. The total cost of the flat was Rs.30,00,000/- and Rs.50,000/- was included for stilt car parking therein. The Buyer's Agreement was executed on 25.03.2010 (annexure C-4) between the parties and possession of the flat was to be given by OP by 31.07.2010, but OP gave the actual possession on 17.06.2011, after a delay of more than 11 months. At the time of taking the possession, the complainant made full and final payment, vide receipt dated 17.06.2011, and the opposite party adjusted an amount of Rs.68,775/- towards compensation at the rate of Rs.5/-
per sq.ft. on account of delay in handing over the possession. The complainant is entitled to compensation on account of delayed delivery of possession on the same basis, as is being charged by the opposite party from the buyers. The total amount of compensation comes to Rs.1,37,500/-, out of which the OP has accounted for Consumer Complaint No.1116 of 2017 3 Rs.68,775/-. Still the opposite party (in short OP) is liable to pay the balance amount of Rs.68,725/-. It is further averred that OP assured to complete the project, along with landscaping as per brochure, fully equipped club, swimming pool, gymnasium, decorative gates etc. within three months, but till date, no basic amenities, as mentioned above, have been provided. It is further averred that the OP also constructed four shops on the area originally earmarked for children's park/play area. The shops are obstructing the view and façade of the flats in Towers No.2 & 3. At the time of sale, the OP promised to provide covered stilt car parking to all flat buyers, including the complainant, but it failed to do so. In fact, there is no provision for covered parking for 96 flats, but there was only arrangement for about 80 flats, resulting in daily disputes between the residents. The parking slots have been allotted and earmarked discriminately and whimsically by OP. The OP is liable to refund the parking charges, as stilt parking space being neither flat nor garage is not saleable at all. The OPs without issuing any show-cause notice, arbitrarily maliciously and illegally cancelled the allotment of the flat, vide letter dated 25.06.2013 on baseless and irrelevant ground of identity only. The State Commission stayed the cancellation of the flat vide order dated 10.03.2014, after considering the facts. In order to harass him, OP managed to get an FIR no.716 of 09.12.2013 registered against him on false and baseless ground and he was discharged by JMIC, Chandigarh, vide order dated 14.06.2017. The complainant also pointed out the deficiencies left Consumer Complaint No.1116 of 2017 4 by OP like sub-standard fire fighting equipment- society has to get all pipes, most hose reels and electric motors-changed/overhauled, inadequate parking space for 96 flats, shabby main gates in contrast to the ones shown in brochure, small paddling pool for children- shown as falsely presented as swimming pool, poor quality equipment in Gym, no jogging track, no amphitheatre, no aromatic garden, only slider, see-saw and swing installed in one corner of the lawn for children, instead of the original children's play area- where shops have been constructed, stairs to overhead water tanks removed which created difficulty in regular maintenance, second underground water pump dismantled leaving no alternate source of supply of water, if main pump developed fault. The complainant has alleged deficiency in service and unfair trade practice on the part of OPs and prayed for following reliefs:
(i) OPs be directed to pay compensation of delay in handing over the flat Rs.1,37,500/- with interest @15% per annum from the due date i.e. 31.07.2010 till actual payment.
(ii) to refund Rs.50,000/- charged illegally by OPs for stilt parking with interest 15% from 15.05.2010 till actual payment.
(iii) to quash the cancellation letter dated 25.06.2013 of flat and to award compensation of Rs.1,00,000/- for mental harassment.Consumer Complaint No.1116 of 2017 5
(iv) to remove above said deficiencies in the project and to pay Rs.3,00,000/- with interest @15% from 17.06.2011 till actual payment.
(v) to pay Rs.2,00,000/- as damages for mental harassment.
(vi) to pay Rs.50,000/- as litigation expenses.
2. Upon notice, OP appeared and filed written reply by raising preliminary objection that the complaint has been filed on vague averments. The complainant has no cause of action to file the complaint. He has not come to Forum with clean hands and has suppressed the material facts. The complainant is not a consumer, as his allotment was cancelled by OP due to the reason that one person claiming himself to be Amrit Chopra i.e. the complainant, which later on was found to be named Ferozuddin s/o S.L. Chopra purchased flat no.406 in the project of OP. He also supplied copy of his passport in the name of Amrit Chopra. He also availed loan from Housing Development Finance Corporation Ltd. in the name of Amrit Chopra. Possession was delivered to him under the name of Amrit Chopra, as he always himself projected as Amrit Chopra instead of Ferozuddin. The purchaser is legally required to give true and complete particulars of his identity and could not conceal any information about his identity. Admittedly, not only Amrit Chopra changed his name but also his religion as well, as is admitted by him in reply to the applications filed by OP in the present complaint, he continued to have the same identity till date although he gave an advertisement in the newspaper. He did not dispute his marriage Consumer Complaint No.1116 of 2017 6 certificate, which is also a proof of identity and which are subsequent documents, which are being enclosed annexure OP-4 to 7. The alleged Amrit Chopra is actually Ferozuddin and he is married to one Ruksana Chopra as per notice published in news paper Desh Sewak dated 06.04.2007. Accordingly, the information about the name of his spouse is also wrong. In the passport, he stated himself as Hindu, whereas he is a Muslim by religion from the marriage certificate issued by the concerned maulvi regarding Nikah of Ferozuddin with Ruksana D/o Nand Lal Surma, which was solemnized on 15.01.2007. The certificate of the Maulvi dated 04.03.2013 authenticated the Nikah solemnized on 15.01.2007 annexure OP-8 to 10. In view of misrepresentation made by said Ferozuddin, a complaint was lodged against him by passport authorities. The complainant has concealed this material fact from the Forum and as such the complaint is liable to be dismissed. It is denied that there is any delay in completing the project. Due to non- availability of construction material on account of ban imposed by the State Government as well as under the orders of Hon'ble High Court, Annexure OP-14, some delay took place in completing the project, but was not intentional. Even, the complainant himself sought to get some additions, an alteration was made in the allotted unit vide his declaration dated 31.03.2010 annexure OP-15, which also resulted into some delay. It is denied that OP paid compensation on account of delay in handing over the possession of the flat @Rs.5/- per square feet. It is denied that there was any liability to pay for any Consumer Complaint No.1116 of 2017 7 alleged delay, what to talk of devising the criteria and adopting the same by OP for grant of compensation @Rs.5/- square feet on account of delay in delivery of possession. The project of OP is incomplete in all respects and completion certificate has already been issued by the concerned authorities. The non-availability of facilities, as alleged by complainant was not promised in the brochure. It is denied that OP raised construction of four shops on the area originally earmarked for children's park in violation of the original master site plan supplied to complainant and as promised at the time of sale of the flats. The complaint was contested by OP even on merits on the above referred grounds. It is denied that there were any shortcomings, lesser quality, missing facilities and deficiencies. The OP denied the other averments of complainant and prayed for dismissal of the complaint.
3. The complainant tendered in evidence his affidavit Ex.C-A alongwith copies of documents Ex.C-1 to C-26 and closed the evidence. As against it, OP tendered in evidence affidavit of Rajesh Pathak, partner of OP Ex.OP-A alongwith copies of documents Ex.OP-1 to Ex.OP-28 and closed the evidence.
4. We have heard the complainant in person and counsel for the OPs and also examined the record of the case. First submission raised by the complainant in this case is that there is delay in delivery of possession of the flat to him, as such he is entitled to compensation, as agreed upon between the parties. The complainant himself admitted that OP delivered the possession to Consumer Complaint No.1116 of 2017 8 him on 17.06.2011, vide Ex.C-6 instead on 31.07.2010. The complainant seeks compensation, as agreed upon in the shape of penalty from OP for non-delivery of flat from 31.07.2010 to 17.06.2011. On the other hand, submission of Sh. Dinesh Madra counsel for OP before this Commission is that OP have already accounted for the penalty to complainant in this regard and as such complainant is not entitled to any further compensation for delayed possession. The counsel for OP relied upon document Ex.C-5 dated 17.06.2011. It is evident from perusal of Ex.C-5 that OP recorded the amount of Rs.68,775/- by giving credit being less amount as penalty charges. This is the sheet-anchor of the case of OP to the effect that the amount of Rs.68,775/- has already been accounted for as penalty charges to complainant. The submission of complainant is that this is not signed by him and as such this document will not estop him from claiming the amount of penalty in this case. Out attention has been drawn by counsel for OP to Ex.OP-15 dated 31.03.2010 signed by the complainant to the effect that he wanted some changes in the flat and gave this writing duly attested by the notary public to OP in this regard. On the basis of this writing, the submission of counsel for OP is that complainant is not entitled to any further amount of compensation on account of delay, as complainant himself sought the alterations in the structure of the flat. The counsel for OP further argued that complainant wrote letter Ex.OP-19 on 17.06.2011 to the effect that he has received the full and final payment, which has been made as per receipt no.759 Consumer Complaint No.1116 of 2017 9 dated 17.06.2011. The complainant was confronted with this document during arguments, but his signatures on it have not been disputed. This documents record assertion that complainant has inspected the flat and took over the possession complete in all respects, as the inventory list and the full and final payment has been paid, as per receipt dated 759 dated 17.06.2011. In the presence of Ex.OP-19 of complainant himself recording that the full and final payment has been paid as per receipt no.759 of 17.06.2011 and he also inspected the flat and was fully satisfied with the work of OP at the time of taking the possession. On the basis of his writing dated 17.06.2011, the complainant cannot run away from this document. Ex.C-6 has to be read in conjunction with document Ex.OP-19 on the record. The complainant has not recorded his protest at the time of his writing Ex.OP-19 and Ex.C-6 that he has not received the penalty amount from OP. Consequently, we are of this view that complainant is now estopped from claiming the further amount of penalty more so, when he has himself sought the alteration in the flat by moving affidavit Ex.OP-15. This point is, thus, decided against complainant in this case.
5. The next point agitated by complainant in person before this Commission is that the cancellation of allotment by OP against him on the point that he is man of different identity and hence he has indulged in dishonest and unfair trade practice in this case. The complainant booked the flat as Amrit Chopra and paid the amounts to OP as such. The OP took the stand that he is in fact Ferozuddin Consumer Complaint No.1116 of 2017 10 and he wrongly disclosed his identity as Amrit Chpra to it. The point of identity of the complainant has been disputed by OP in this case. The complainant applied for flat as Amrit Chopra with OP and paid the amount to OP vide cheque signed by him as Amrit Chopra. The passport of the complainant Ex.OP-3 is on the record and his name is recorded as Amrit Chopra son of Sardari Lal Chopra of Indian nationality and name of his wife is recorded as Neena Ruksana Chopra in it. Ex.OP-4 is the copy of notice in the newspaper dated 08.10.2006 for changing the name given by complainant to the effect that now he has been known as Amrit Chopra and Ferozuddin. Vide Ex.OP-5 his wife changed her name from Ruksana Chopra to Veena Chopra and vide Ex.OP-6 dated 06.04.2007 his wife changed her name from Veena Surma to Ruksana Chopra alias Veena Chopra W/o Feroz alias Amrit Chopra. Ex.OP-7 is the public notice dated 20.03.2013 in the newspaper to the effect that complainant has been dropping/relinquishing the additional adopted name of Firozuddin and now he would be known only by the name of Amrit Chopra. Ex.OP-8 is the copy of nikahnama issued by Moulana Shakeel Ahmed Quasmi Jama Masjib, Manimajra, Chandigarh with regard to nikah of Ferozuddin with Ruksana. The translation of this marriage certificate is Ex.OP-9 on the record. Ex.OP10 is copy of marriage certificate issued by above said Maulvi on 04.03.2013. OP filed a complaint against complainant regarding wrong identity before Regional Passport Officer, Chandigarh and FIR no.716 dated 09.12.2013 was registered against him vide Ex.OP-13. The Consumer Complaint No.1116 of 2017 11 complainant was discharged by Judicial Magistrate 1st Class Chandigarh, vide order Ex.C-12 on 14.06.2017. The proceedings against the complainant stood terminated on account of his discharge from that criminal case. On the other hand, the complainant has proved ample evidence on the record in the shape of passport, adhar card, driving licence, pan card as Amrit Chopra son of Sardari Lal Chopra. Mere change of name or denomination of complainant would not deprive him of his legal rights to possess the property, which is guaranteed to the citizens of the country by the Constitution. The citizen is entitled to possess the property under Article 31 of the Constitution of India. Consequently, the cancellation of the allotment of the complainant on this point by OPs is unsustainable in the eye of law and merits to be rejected in this case. Consequently, the order of cancellation of the allotment passed by OP is ordered to be set aside in this complaint.
6. The next submission of complainant is that OP has left the deficiencies in the project and flat and as such directions be issued to OP to remove the deficiencies left in flat and project like sub-standard fire fighting equipment- society has had to get all pipes, most hose reels and electric motors-changed/overhauled, inadequate parking space for 96 flats, shabby main gates in contrast to the ones shown in brochure, small paddling pool for children- shown as falsely presented as swimming pool, poor quality equipment in Gym, no jogging track, no amphitheatre nor aromatic garden, only slider, see-saw and swing installed in one corner of the Consumer Complaint No.1116 of 2017 12 lawn for children, instead of the original children's play area- where shops have been constructed, stairs to overhead water tanks removed which created difficulty in regular maintenance, second underground water pump dismantled leaving no alternate source of supply of water if main pump developed fault. The complainant also pointed out the above deficiencies in service on the part of OP. The OP seriously disputed these contentions, raised by complainant by arguing that the completion certificate has been granted to OP by the competent authorities for this project, vide Ex.OP-26 dated 12.02.2011. It is evident from perusal of this completion certificate that the project was completed on 12.02.2011 and competent authority gave the approval of its completion vide Ex.OP-26. The onus is now shifted on the complainant to prove the above referred deficiencies. The OP also relied upon Ex.OP-19 writing of complainant to the effect that he inspected the flat and he took over the physical possession of the flat in all respects, as per the inventory list and also signed it with full satisfaction. The complainant only relied upon his affidavit to this effect on the record. The complainant has not filed the affidavit of any other allottees of this project to the effect that the above referred deficiencies still exist thereat. There is no report of building expert or architecture by the complainant in this regard to prove this fact. The complainant has not even applied to this Commission for appointment of Local Commissioner to bring out the correct picture on the point of above referred deficiency in the above project. In the absence of any report Consumer Complaint No.1116 of 2017 13 of expert witness or the other corroborating evidence. it is difficult to rely upon the bald statement of complainant which stood rebutted by the affidavit of Rajesh Pathak Ex.OP-A and completion certificate Ex.OP-26 and writing of complainant Ex.OP-19. This point is accordingly decided against the complainant by us.
7. The next point for adjudication in this case, as agitated by complainant is that OP wrongly charged the amount of Rs.50,000/- from complainant for stilt parking, whereas it is included in the sale price of the flat. The complainant seeks refund of Rs.50,000/- for this purpose from complainant. The complainant mainly relied upon law laid down by the Apex Court in "Nalachand Laloochand Pvt. Ltd. Versus Panchali Co-operative Housing Society Ltd." 2010(9)SCC-536. It has been held in this authority that stilt space for parking cannot be termed as a flat under Section 2(a-1) of the Act. Dispute about right of promoter to sell stilt area separately to some of flat purchasers. High Court held that he cannot sell it because the same is common user area, which is not included in calculating FSI area for construction. There is no justifiable reason to exclude parking areas open to sky or stilted portion from the purview of common areas and facilities. It is not necessary that all purchasers must use the common facilities. Since the open to sky parking places or stilt areas are not garages within meaning of MOFA they are not saleable independently as a flat or alongwith the flats. Promoter can charge separately for these facilities proportionate to the area of the flats. We find that this authority Consumer Complaint No.1116 of 2017 14 would be distinguishable from the fact situation of the case. This authority has been handed down under Maharashtra Ownership Flats (Regulations of Promotion Construction Sale, Management & Transfer) Act, 1963, Section 2(a-1), 3 and 4. Under the above Act, 1963 and in view of its interpretation, the complainant cannot derive any benefit from this authority, as the present case is not governed by that Act. It has been held in "DLF Limited Vs. Manmohan Lowe and others" 2014(2)SCC-231 by the Apex Court that the above referred judgment is not applicable in view of Haryana Development and Regulation of Urban Area Act, 1975. As per explanation to Section 2 (c) of PAPRA Act, 1995, if a basement, cellar, garage, room, shop or storage space is sold separately from an apartment, it shall be treated as an independent apartment and not a part of apartment or common area and facility. Stilt parking is covered area parking and the allottee is entitled to use the common facilities of the parking for all the allottees and has to pay for the stilt parking. Similarly, in the case in hand, the Punjab Apartment and Property Regulation Act, governs the situation. The stilt area can be included in the total calculation of area as held in para no.7 of the judgment delivered by our own State Commission in "Estate Officer, Garden Heights Vs. Parveen Sharma" 2015(2)CPJ-127 and it makes it clear that complainant had paid for stilt area and as such has right to use the same and it cannot be declined to him. The reliance of complainant on law laid down by Apex Court in above authority is distinguishable from the facts of the case, as the case in hand is Consumer Complaint No.1116 of 2017 15 cover under the PAPRA Act, 1995 and that judgment would not be attracted in this case. This Commission also held that where the specific parts of the stilt areas have been sold to the other apartment owners on the payment of the price thereof, the complainant could not have used those very specific parts of the stilt areas, which had been so provided to those flat owners. The complainant could have used only the common area and facilities without hindering or encroaching upon the lawful rights of those apartment owners. Consequently, the complainant is not entitled to refund of the amount of stilt parking paid by him to OPs, as he is not entitled to stilt parking without payment of the charges for it.
8. As a result of our above discussion, the complaint is partly accepted by setting aside the cancellation of the allotment of the flat by OP, as per their letter dated 25.06.2013 and it is ordered to be restored immediately. The complainant is entitled to compensation of Rs.30,000/- for mental harassment for cancellation of his allotment and Rs.10,000/- as cost of litigation as well. The complainant is not entitled to other reliefs as claimed and complaint is partly dismissed. These amounts shall be paid by OP to complainant within 45 days from the date receipt of certified copy of the order.
9. Arguments in this complaint were heard on 30.07.2018 and the order was reserved. The certified copies of the order be communicated to the parties, as per rules.
Consumer Complaint No.1116 of 2017 16
10. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (SURINDER PAL KAUR) MEMBER August 06, 2018.
(MM)