National Consumer Disputes Redressal
Uddhav Nikam vs Era Realtors Private Limited & Anr. on 26 July, 2023
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 411 OF 2018 1. UDDHAV NIKAM Flat No-3605, 36th Floor, Tower-A, Omkar Alta Monte Complex, Opp-Western Express Highway, Kurar village, Malad East, MUMBAI - 400097 MAHARASHTRA ...........Complainant(s) Versus 1. ERA REALTORS PRIVATE LIMITED & ANR. Omkar House, Off: Eastern Express Highway, OPp: Sion Chunnabhatti Signal, Sion (East), MUMBAI - 400022 MAHARASHTRA 2. OMKAR REALTORS & DEVELOPERS PVT. LTD. Omkar House, Off: Eastern Express Highway, OPp: Sion Chunnabhatti Signal, Sion (East), MUMBAI - 400022 MAHARASHTRA ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE RAM SURAT RAM MAURYA,PRESIDING MEMBER HON'BLE MR. BINOY KUMAR,MEMBER
FOR THE COMPLAINANT : MS. SUMAN SHARMA, ADVOCATE
MR. NARENDRA KUMAR SHARMA, ADVOCATE FOR THE OPP. PARTY : MR. C. GEORGE THOMAS, ADVOCATE
MR. SAURAV SUNIL, ADVOCATE
MS. PRACHI PANDEY, ADVOCATE
Dated : 26 July 2023 ORDER
1. Heard Ms. Suman Sharma, Advocate, for the complainant and Mr. C. George Thomas, Advocate, for the opposite parties.
2. Uddhav Nikam has filed above complaint for directing the opposite parties to (i) pay compensation in the form of the interest @18% per annum, on his deposit for the period possession was delayed; (ii) refund Rs.35/- lacs, for providing incomplete flat; (iii) refund Rs.7/- lacs, realized in the head of car parking/vastu; (iv) refund Rs.2/- lacs, realized in the head of 'building protection fund'; (v) pay Rs.3000000/-, as compensation for metal agony and harassment; (vi) pay Rs.55000/- as litigation costs; and (vii) any other relief which is deemed fit and proper in the facts and circumstance of the case.
3. The complainant stated that Era Realtors Private Limited and Omkar Realtors & Developers Private Limited (the opposite parties) were companies, registered under Companies Act, 1956 and engaged in business of development and construction of group housing project. The opposite parties launched a group housing project in the name of "Alta Monte" at C.T.S. Nos.811-A/7(Part), 812, 813, 814 and 844, village Malad, Taluka Borivali, Malad (East), Mumbai-400097 and made wide publicity of its facilities and amenities. Believing upon the representations of the opposite parties, the complainant booked a flat and deposited booking amount of Rs.9.27 lacs on 04.11.2012. The opposite parties allotted Flat No.A-3605, carpet area 672 sq.ft. + one car parking, for basic sale price of Rs.18002250/- vide Allotment Letter dated 06.12.2012. Payment plan was "construction link payment plan". The opposite parties executed an Agreement for Sale dated 06.02.2013, in favour of the complainant. Clause-13 of the agreement provides due date of possession as 01.06.2015 with grace period of six months. The complainant paid the instalments timely as per demand of the opposite parties. The opposite parties realized 90% of the consideration till 14.10.2014 and total Rs.18529563/- till 11.02.2016. For payment of the instalments, the complainant had taken loan from HDFC Bank, on which EMI was started. The complainant was living in rented accommodation. As the complainant was facing double financial burden, he used to write emails to the opposite parties for delivery of possession on time. The opposite parties, through email dated 30.10.2015, raised final demands, including Rs.2/- lacs under the head of "Building Protection Fund", which were deposited on 03.02.2016 and 11.02.2016. The opposite parties handed over possession on 16.02.2016, without showing the flat. The complainant signed the possession letter under protest. At the time of booking on 04.11.2012, Mr. Siddhartha, an office bearer of the opposite parties had shown a sample flat, which was fully furnished and he informed that cost of furnishing was Rs.35/- lacs. But possession was handed over an empty flat. The flat buyer association raised this issue with the opposite party, in the meeting dated 08.11.2016. The opposite parties charged Rs.7/- lacs, for car parking, which was changed as Vaastu charges as they were not entitled for charging for car parking. In spite of repeated requests of the flat buyers, the opposite parties were purposely not forming flat owners society as they were charging maintenance charges at a very high rate and realizing transfer charges, from the persons, who were selling their flats. In the agreement, maintenance charge has been mentioned @ Rs.5/- per sq.ft. for one year but the opposite parties have realized maintenance charge @ Rs.10/- per sq.ft. for one year and realized Rs.177846/-. Possession over the flat was handed over on 16.02.2016 and car parking on 02.02.2017 and more than 30 amenities were still not provided. The opposite parties completed swimming pool on 02.03.2017, temporary play area for the children on 22.10.2017, club building on 11.02.2018 and access to main road on 15.03.2017. In parking area, there was heavy water leakage. Basic amenities like mobile boosters, gas pipe connection, solar power panel, non-functioning of fire fighting system and poor quality of tiles in lobby and related area. Paint quality is very poor, which started falling at various places. Small modular kitchen, switches, boards etc. are of ordinary quality. Lock of main gate of the flat is not working smoothly. Geyser is not working condition. Wooden flooring in both the bed rooms are not properly fixed. Service lift was moving up to 25th floor for some period during which, the complainant was shifting his house holds. On 11.03.2016, the lift was stuck in middle. All of a sudden, it went down in a very high speed, giving a heavy jerk to the persons in the lift. Lot of construction work was still going on. The opposite parties have not provided proper water proofing system due to which leakage started in all over the building on 26.06.2016. There are many big cracks in the building. The opposite parties were liable to pay delay compensation in the form of interest @18% per annum on the deposit of the complainant for the delayed period. The opposite parties did not give proper quotation of the flats. The opposite parties had a tie with Lunatech company to provide cable TV & Internet without consent of the flat owners. The opposite parties were charging money for celebrating 'navaratri' festival. There was very poor security. Due to improper maintenance, major fire took place in the night of 16.01.2015. Flat owners association held meeting with the opposite parties on 08.11.2016 and 11.01.2017, in which, they highlighted the deficiencies in construction of the building, development of the amenities, which were essential for habitation, club related facilities and non-payment of delay compensation but the opposite parties did not redress the issues. Then this complaint has been filed on 13.02.2018, claiming deficiency in service.
4. The opposite party filed its written reply on 23.08.2018 and contested the complaint. The opposite parties did not dispute booking of the flat, allotment of the flat, execution of agreement for sale and delivery of possession. The opposite parties stated that sample flat was displayed but neither orally there was any commitment from the opposite parties including their employees nor in the allotment letter and in the agreement for sale, it is mentioned in specification that the flat would be delivered in fully furnished condition. Claim of Rs.35/- lacs, towards furnishing of the flat is not warranted. Clause-4(k) of the allotment letter and Clause-13 of the agreement provide due date of possession as 01.06.2015 with grace period of six months. The opposite parties completed construction, obtained "occupation certificate' on 23.12.2015 and offered possession to the complainant, vide email dated 30.12.2015. The complainant deposited balance amounts on 03.02.2016 and 11.02.2016. The opposite parties issued possession letters dated 11.02.2016, for possession of Flat No.A-3605 and Parking space No.46 on podium level P-6 to the complainant, who took possession on 16.02.2016. It has been denied that at the time of taking possession, the complainant was not permitted to inspect the flat and parking space or there was any construction defect/deficiency. Endorsement in possession letter that "signing in protest & without seeing the flat & tower" was voluntary act of the complainant and does not mean that the opposite parties ever stopped him from inspection of the flat or parking space. From the photographs filed by the complainant also, it is proved that there was no construction defect. The complainant along with their family was living in it. Large numbers of flat buyer are residing in the building without any complaint. The opposite parties engaged the company Lunateck to develop infrastructure of cable TV and Broadband, which were done by it. Now services of MTNL, Earthway and Airtel relating to cable TV and internet are being provided. Mobile booster is being increased in phase-wise depending upon number of the users. Infrastructure of supply of the gas has not been developed by Maharastra Gas Limited in nearby locality of the building. There was no commitment for solar panel. Fire fighting system is fully functional. Fire incident of January, 2015 i.e. before "occupation certificate" is not relevant. It has been denied that cheap paints were used. Some time while shifting, heavy house holds, the tiles in the lobby were damaged, which was duly attended. The agreement for sale was signed by the complainant after going through it and fully understanding its contents. After 5 years of the agreement, the complainant cannot be allowed to raise any objection against it. The installments were realized on achieving milestone of the construction. "Building Protection Fund" has been realized for repair of normal wear and tear in the building and its amenities. This money would be transferred to Flat Owners Society on its formation. It is for Flat Owners Society to decide as to whether it would be refunded to the flat owners. Parking space charge is included in the total cost of the flat, which has been mentioned in the allotment letter and in the agreement. It has been made clear in the agreement that there were 4 buildings, which have common area and common amenities. As soon as construction of other buildings would be completed Flat Owner's Society would be formed. Transfer fee is being realized in terms of the agreement. It is denied that the opposite parties were making money for usage of the amenities from the flat owners or ever charged money for 'navaratri festival'. It has been denied that the opposite party was charging maintenance charges exorbitantly. In the allotment letter and in the agreement, it has been mentioned that maintenance and other charges were subject to variation. Due to inflation, revision of manpower, increase in their salary and increase in the rate of materials, the maintenance charges were revised. The opposite parties are maintaining full account of maintenance charges, which is subject to audit. On the request of provisional flat owners association, the amount of maintenance charges was deposited in separate account in the bank. It has been made clear in the agreement that the flat buyer would not create any problem in completing construction as per layout plan. Currently swimming pool, sports complex with badminton court, lawn tennis, indoor gym, temporary gym and temporary children play area are functional. Water proofing has been done. It has been denied that there was any leakage in the building including in parking area. Minor problems in individual bathroom were duly attended and rectified by the opposite parties. Main door lock was installed of branded company Godrej. If there would be any problem, it will be replaced. Lifts are properly functioning without any problem. After living for about two years, now the complaint is being made in respect of modular kitchen. The photograph relating to crack is due to some interior work done by the complainant and not a construction defect. The opposite party attended the complaint in this respect and rectified it. A Security Company has been engaged for security. It has been denied that owners association had ever made any complainant/protest or held any meeting with the opposite parties. It has been denied that the opposite parties opened entry gate at wrong place. Construction of ramp depended upon other construction and it was done in scientific manner. There is no deficiency in service on the part of the opposite parties nor any unethical business practice was adopted by them. The complaint has been filed on various false allegation with an intention to extract money from the opposite parties and is liable to be dismissed.
5. The complainant filed Rejoinder Reply, Affidavit of Evidence of Uddhav Nikam. The opposite party Affidavit of Evidence, Affidavit of Admission/Denial of documents of Vijay Kunder. Both the parties have filed their short synopsis.
6. We have considered the arguments of the counsel for the parties and examined the record. So far as allegation relating to delay in possession is concerned, Clause-4(k) of the allotment letter and Clause-13 of the agreement provide due date of possession as 01.06.2015 with grace period of six months. The opposite parties completed construction, obtained "occupation certificate' on 23.12.2015 and offered possession to the complainant, vide email dated 30.12.2015. The complainant deposited balance amounts on 03.02.2016 and 11.02.2016. The opposite parties issued possession letters dated 11.02.2016, for possession of Flat No.A-3605 and Parking space No.46 on podium level P-6 to the complainant, who took possession on 16.02.2016. Due date of possession expired in December, 2015 and possession was offered on 30.12.2015. Some delay in civil construction work is un-evitable. The complainant is not entitled for delay compensation small delay in offer of possession.
7. The complainant has claimed Rs.35/- lacs, for not providing furnished flat. The complainant stated that at the time of booking on 04.11.2012, Mr. Siddhartha, an office bearer of the opposite parties had shown a sample flat, which was fully furnished and he informed that cost of furnishing was Rs.35/- lacs. This fact has been denied by the opposite parties. Allotment letter and agreement for sale refer the flat, which includes one car parking space. It has nowhere mentioned that that possession would be given over furnished flat. In clause-17, it has been made clear that the promoter would not be liable for anything in brochure or in advertisement, which is not listed in the agreement. The agreement was signed on 06.02.2013, while this complaint has been filed 13.02.2018. After five years of the agreement and after about two years of taking possession, this issue cannot be permitted to be raised by the complainants.
8. The complainants have claimed for refund of Rs.7/- lacs, realized for car parking space. Total price of the flat as mentioned in the allotment letter and agreement, included car parking. It is not clear that from where the complainant has given break-up of Rs.7/- lacs. Supreme Court in Wg. Cdr. Arifur Rehman Vs. DLF Southern Home Private Limited, (2020) 16 SCC 512, held that if the builder provides covered car parking space, then he is entitled to charge for it.
9. In the allotment letter and in the agreement, it has been mentioned that maintenance and other charges were subject to variation. Due to inflation, revision of manpower, increase in their salary and increase in the rate of materials, the maintenance charges were revised. The opposite parties are maintaining full account of maintenance charges, which is subject to audit. On the request of provisional flat owners association, the amount of maintenance charges was deposited in separate account in the bank. The maintenance amount as mentioned in the year 2012-2013 has been revised in terms of allotment letter and the agreement.
10. The complainant made various allegations relating to defect in construction, paint, lift, flooring, leakage etc., which have been denied by the opposite parties. The complainant did not apply for issue of local commission for inspection of the building as such no finding can be recorded in respect of construction defects paint, lift, flooring leakage etc. only on the basis of affidavit and counter affidavit. Clause-38 (m) of the agreement, provides that the buyer had to point out the defect in construction in writing within one month of taking possession. There is nothing on record to prove that the complainant pointed out defect in construction in writing within one month of taking possession.
11. The complainant has challenged realization of Rs.2/- lacs in the head of "building protection fund". The opposite parties stated that "Building Protection Fund" has been realized for repair of normal wear and tear in the building and its amenities. This money would be transferred to Flat Owners Society on its formation. It is for Flat Owners Society to decide as to whether it would be refunded to the flat owners. In group housing project, normal wear and tear used to happen. Therefore, for recurring expenses, this money was realized.
ORDER
In view of the aforesaid discussions, the complaint is dismissed.
..................................................J RAM SURAT RAM MAURYA PRESIDING MEMBER ............................ BINOY KUMAR MEMBER