State Consumer Disputes Redressal Commission
Mr Mark Quadros vs M/S Housing Development & ... on 10 April, 2012
UNDER CERTIFICATE OF POSTING
BEFORE THE
HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
Complaint
Case No. CC/10/31
1. MR MARK QUADROS
DHEERAJ DREAMS BUILDING
NO 3 /A FLAT NO 1704, L B S MARG,
BHANDUP (W)
Maharastra
...........Complainant(s)
Versus
1. M/S HOUSING DEVELOPMENT & INFRASTRUCTURE LTD
DHEERAJ ARM, 9TH FLOOR, ANANT KANEKAR MARG, BANDRA (E)
MUMBAI 400 051.
2. THE DIRECTOR, M/S HOUSING DEVELOPMENT &
INFRASTRUCTURE LTD.
DHEERAJ ARMA, 9TH FLOOR, ANANT KANEKAR MARG, BANDRA(E)
MUMBAI 400 051.
3. VED PRAKASH SHARMA, GENERAL MANAGER &
AUTHORIZED SIGNATORY
M/S HOUSING DEVELOPMENT & INFRASTRUCTURE LTD.,
DHEERAJ ARMA, 9TH FLOOR, ANANT KANEKAR MARG, BANDRA(E)
MUMBAI 400 051.
............Opp.Party(s)
BEFORE:
Hon'ble Mr. S.R. Khanzode PRESIDING MEMBER
Hon'ble Mr. Narendra Kawde MEMBER PRESENT:
Complainant in person.
O R D E R Per Shri S.R. Khanzode Honble Presiding Judicial Member:(1)
Consumer complaint refers to alleged deficiency in service on the part of the builder and developer viz.Opponent No.1 M/s.Housing Development and Infrastructure Ltd. (hereinafter referred to as the builder for brevity). It is the contention of the Complainant Mr.Mark Quadros (hereinafter referred to as the Complainant) that he agreed to purchase the flat no.1704 in A Wing of Building 3 in Dhiraj Dreams Housing Complex developed and constructed by the Builder. The builder is the Public Limited Company incorporated in 1956 and formerly known as M/s.United Development and Improvement India Ltd. Opponent No.2 in the consumer complaint is generally described as Directors of the Opponent No.1 Company but their names are not mentioned. Opponent No.3 Vedprakash, Sharma, is described as the General Manager and authorized signatory of the builder Company. It is contended on behalf of the Complainant that before entering into the agreement to purchase the flat, he had inspected the sample flat which was made ready by the builder. Expecting that he would be getting the flat as per the said sample flat, he entered into an agreement dated 30th March, 2005 to purchase flat, as more particularly described in the agreement, bearing Flat No.1704 situated on the 17th Floor in A Wing in a building Dreams III (which is having area 79.01 square meters carpet area and which included carpet area of balconies) for a consideration of `24,30,000/-. He had received the possession of the Flat on 19.05.2007 and for extra amenities, as per separate agreement, he agreed to pay and paid `6,20,865/-
as additional consideration. According to Complainant there was delay of 11 months in handing over the possession and for which compensation is claimed amounting to `4,74,840/- as on May, 2007 with further interest on the same @18% per annum. It is further contended on behalf of the Complainant that in the middle of June, 2007 he approached Manager of the builder viz.Mr.Amla Singh and had requested him to rectify at least visible defects but but without any result. Therefore, the Complainant had written about the defects to the builder as per letters dated 10.07.2007 and 02.08.2007 as well as 08.04.2008. According to him following defects exist as well as the following amenities are not provided as per the agreement:
Promised Amenities As per Exhibit-2.
Status as on to date
1.
Water Body on the podium with Fountain :
Not provided
2. Cricket Nets :
Neither provided nor place earmarked
3. Podium Parking :
Parking places are compulsorily sold
4. Rain harvesting :
Neither provided nor place earmarked
5. Piped Gas connection :
`5000/-
collected as an after thought
6. Ionized French windows with Boxed grills :
Ordinary powder coated windows and plain thin stripped grills without paint
7. CCTV for security :
Not provided
8. Internet connection :
Not provided
9. Fire Fighting Equipment :
Not fully provided
10. Swimming Pool with Cascade effect and Sand-pit :
Not provided
11. Club House with well-equipped Gymnasium Steam, Sauna and Jacuzzi :
Not provided
12. Pool and Carom tables :
Not provided
13. Table Tennis and Tennis Courts :
Not provided
14. Landscaped garden :
Not provided (2) While handing over the possession, the builder collected amount of `63,740/- towards the outgoing charges @`3645/- per month inclusive of municipal property tax. The amount is well accounted by the builder. The possession was received when the flat was in an inhabitable condition. The flat of the Complainant is assessed for municipal property tax only from 01.04.2008 and that too on the carpet area of 850 sq.ft. The builder failed to pay the tax as required and therefore, refund of `32,150/- is claimed from the builder after adjusting the building maintenance charges @Re.1/- per sq.ft. per month. Further the Complainant was not given facility of three phase electric meter but only one single phase meter was provided and therefore, the reimbursement is claimed to the extent of `22,500/-. The Complainant made following prayers:
a) The Opposite Parties, jointly and severally, be ordered to pay to the Complainant an amount of `13,35,750/- (Rupees Thirteen Lac Thirty Five Thousand Seven Hundred Fifty only) as payment of 195 sq.fts. area excess charged, with interest on this amount at the rate of 18% per annum from the date of filing of this complaint till the date of actual payment.
b) The Opposite Parties, jointly and severally, be ordered to pay to the Complainant an amount of `3,10,430/- (Rupees Three lac ten thousand four hundred thirty only) as 50% of the cost of extra amenities, with interest on this amount at the rate of 18% per annum from 30.06.2006 till the date of actual payment.
c) The Opposite parties, jointly and severally, be ordered to pay to the Complainant an amount of `4,74,840/- (Rupees Four lac seventy four thousand eight hundred forty only) as interest for 11 months delay in giving the possession of the flat, with further interest on this amount at the rate of 18% per annum from 01.06.2007 till the date of actual payment;
d) The Opposite Parties, jointly and severally, be ordered to pay to the Complainant an amount of `4,57,630/- as 15% of the price of the flat and cost of extra amenities, as just and reasonable compensation for forcing on the Complainant to accept his flat on the last/top floor of the building by unilateral alteration of building plans and specifications, with further interest on this amount at the rate of 18% per annum from the date of filing of this complaint till the date of actual payment.
e) The Opposite Parties, jointly and severally, be ordered to pay to the Complainant an amount of `1,50,000/- (Rupees one lac fifty thousand only) collected as price of one podium parking space, with interest on this amount at the rate of 18% per annum from 17.01.2007 till the date of actual payment;
f) The Opposite Parties, jointly and severally, be ordered to pay to the Complainant an amount of `22,500/- (Rupees Twenty Two Thousand Five hundred only) collected towards electric connection and security deposit, with interest on this amount at the rate of 18% per annum from 09.05.2007 till the date of actual payment.
g) The Opposite Parties, jointly and severally, be ordered to pay to the Complainant an amount of `5,000/- (Rupees Five Thousand Only) collected towards piped gas connection with interest on this amount at the rate of 18% per annum from 09.05.2007 till the date of actual payment;
h) The Opposite Parties, jointly and severally, be ordered to pay to the Complainant an amount of `32,150/- (Rupees Thirty Two Thousand one hundred fifty only) as the excess amount held, out of the 18 months monthly maintenance charges collected in advance, with interest on this amount at the rate of 18% per annum from 09.05.2007 till the date of actual payment.
i) The Opposite Parties, jointly and severally, be ordered to pay to the Complainant an amount of `1,00,000/- (Rupees One Lac only) as compensation for the continuous harassment, inconvenience, anxiety and mental torture caused to the Complainant and to his family by the deliberate acts of the Ops, in the facts and circumstances of the case;
j) The Opposite Parties, jointly and severally be ordered to pay costs of this complaint to the Complainant;
k) This Honble Commission be pleased to award any further and other reliefs to the Complainant, in the facts and circumstances of the case.
The Complainant, most humbly and respectfully prays this Honble Commission to grant and order the following interim reliefs pending the hearing and final disposal of this complaint:
a) That this Honble Commission be released to direct the Opposite Parties to immediately complete the installation and commissioning of the ready to use fire fighting equipments/systems in the said Dreams Housing Complex, conforming to the statutory requirements;
b) That this Honble Commission be pleased to direct the Opposite Parties to provide all the amenities as per the brochure at Exhibit-2, which are part and parcel of the buildings and the Project, with a time frame for completion;
c) And any other and further interim reliefs as this Honble Commission be pleased to award and order in this complaint, in the interest of justice.
(3)The Opponent Nos.1 and 2 by their written version denied all the allegations in toto and submitted that the consumer complaint is misconceived. They have elaborately stated and explained each and every adverse allegation made against them. The grievances which were raised by the Complainant were duly attended. All the amenities, as agreed, were provided. About fire equipment installed, they submitted that they were functional and even the fire authority issued no objection before issue of the occupation certificate by the local authority. Even few days before those fire equipments and installations were tested in a mock drill prior to the event of fire alleged by the Complainant and therefore, no deficiency in service on that count also could be alleged. It is for the Complainant and his Society to ensure proper maintenance of the equipments.
(4)The Opponent No.3 denied that he is responsible for alleged deficiencies in service. It is also submitted on his behalf that no deficiency in service in fact has been alleged against him.
(5)The Complainant sworn his own affidavit in support of his claim while on behalf of Opponents Imtiaz Shaikh filed his affidavit and also produced on record various documents.
(6)As far as for the amenities alleged as not provided and other grievances made it is for the Complainant to establish the same and which he failed to do. The amenities such as Cricket net, fountain etc. are the claims, perhaps, find no place in the agreement but only made by referring to the brochure which according to Complainant induced him to buy a flat. We are afraid, one has to refer to the terms of the agreement rather than to the brochure in this behalf. Therefore, the Complainant failed to show that any such amenities were agreed but were not provided.
(7)About shortfall of the area of the flat, there is hardly any allegation made in the complaint. The same has not been established by the Complainant to claim the reliefs of compensation in terms of prayer clause 8(a), supra. As per the agreement, the area of the flat is 79.01 sq.mtrs. (carpet area) inclusive of area of balcony. No evidence is led to establish the same. Mere referring to some municipal assessment and the area shown therein, it will not help the Complainant to establish his case on the point.
(8)The Complainant while taking possession of the flat has executed the possession receipt which not only included the statement of satisfaction about the condition of the flat etc. His statement that he was made to sign said possession letter on 19.05.2007 at the time of taking possession, is not substantiated and cannot be believed. As far as car parking facility is concerned, the grievance of the Complainant also cannot be one in respect of which it can be said that any deficiency in service on the part of the builder is established since the builder has already provided the car parking. As far as right of the builder to sell the car parking, it all depends upon the defined common areas or reserved areas and one necessary has to make a reference to the provisions of standard Society bye-laws, particularly, by-law 78(a). There is no evidence on car parking which was made available or not as provided, as agreed.
(9)The documents placed on record on behalf of the builder also speak for allotment of parking to the Complainant.
(10)As far as rendering the accounts of the deposits which were collected from the purchasers, the builder rightly pointed out that it is the Society to whom the accounts are required to be given and they never denied their liability in that respect. Therefore, as far as Complainant is concerned, his grievance about the alleged deficiency in service on that count would not survive.
(11)It further appears that the builder has a grievance against the Complainant for not paying the maintenance and other dues. Since, these are the accounts matters, they would not fall within the purview of the consumer dispute. The amenities which are agreed to be provided are mentioned in the Fourth Schedule of the agreement. At the first instance, if the Complainant had any grievance then since the cause of action of which arose on the date of taking possession the consumer complaint in respect thereof since filed beyond the period of two years from the accrual of cause of action cannot be considered.
(12)At the second instance nothing has been shown about the material used or supplied is of inferior quality. About the payment of `5000/-
received in respect of pipe gas connection the Complainant did not show or file on record any receipt and failed to show as to on what count in relation to the pipe gas connection said amount was received from him. Even in that connection since said payment was made at the time of receiving the possession vis--vis grievance pertaining to that being time barred, cannot be entertained.
(13)As far as relief of monetary nature claimed it covers the claim regarding repayment of 50% of the extra amenities claimed amounting to `3,10,430/- with interest @18% per annum. However amount of `28,77,830/- (Consisting 90% price of the flat and cost of extra amenities plus stamp duty and registration charges) from 30.06.2006 for delayed possession, repayment of at least 15% of the price of the flat and cost of extra amenities amounting to `4,57,630/-, refund of `22,500/- for not providing three phase electric meter and refund of maintenance charges `32,150/-; for the reasons stated earlier are neither established or which can be shown that those claims are within limitation or legitimacy to claim said monetary reliefs, is also not established. The Complainant failed to show that builder is guilty for late delivery of possession. In fact, the builder has pointed out a clause which shows certain circumstances under which possession could be delayed and accordingly was taken care of while entering into an agreement. Prima-facie it is for the Complainant to show that such protection is not available to the builder, particularly in the light of the circumstances disclosed by the builder on the relevant issue.
(14)For the reasons stated above, we find the consumer complaint is misconceived and holding accordingly, pass the following order:
O R D E R
(i) Consumer Complaint stands dismissed.
(ii) In the given circumstances, parties to bear their own costs.
Pronounced on 10th April, 2012.
[Hon'ble Mr. S.R. Khanzode] PRESIDING MEMBER [Hon'ble Mr. Narendra Kawde] MEMBER ep