State Consumer Disputes Redressal Commission
Dynasty Buildwell Pvt. Ltd. & Others vs Promila Gautam on 6 June, 2016
Daily Order FIRST ADDITIONAL BENCH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB SECTOR 37-A, DAKSHIN MARG, CHANDIGARH. First Appeal No.1314 of 2013 Date of Institution: 29.11.2013 Date of Decision: 06.06.2016 1. Dynasty Buildwell Pvt. Ltd, Corporate Office, 9th Floor, Paras Downtown Center, Sector Road, Sector 53, Gurgaon through its authorized signatory - Mr. M.K Tripathi, at present corporate office, 11th floor, Paras Twin Towers, Sector Road, Sector 54, Gurgaon. 2. Paras Panorama Apartment, Paras Buildtech Pvt. Ltd, 11th Floor, Paras Twin Towers (Tower B), Sector 54, Golf Course Road, Gurgaon, through its Senior Manager Sales and Marketing. 3. Senior Manager Sales and Marketing, Paras Panorama Apartment, Paras Buildtech Pvt. Ltd, 11th Floor, Paras Twin Towers (Tower-B ), Sector 54, Golf Course Road, Gurgaon. 4. Harinder Nagar s/o Sh. V.R. Nagar, resident of AF-211, New Friends Colony, New Delhi 110065. 5. The Manager, Paras Panorama (A Residential Project of Paras Buildtech), Chandigarh Kharar Highway, Kharar, District Mohali). 6. Paras Twin Towers, 11th Floor, Tower B, Sector 54, Golf Course Road, Gurgaon through its C.E.O. Appellants/Opposite parties Versus Promila Gautam wife of Sh. H.N Gautam, resident of Unit No.007, Type 3B, First Floor, at Paras Panorama, Kharar Road, District Mohali. Respondent/Complainant First Appeal against order dated 30.08.2013 passed by the District Consumer Disputes Redressal Forum, Mohali Quorum:- Shri J. S. Klar, Presiding Judicial Member.
Shri.J.S Gill, Member Shri. H.S Guram, Member Present:-
For the appellants : Sh.Maharaj Kumar, Advocate For the respondent : Sh. Anupam Gautam, Advocate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . J.S KLAR, PRESIDING JUDICIAL MEMBER :-
The appellants of this appeal (the opposite parties in the complaint) have directed this appeal against order dated 30.08.2013 of District Consumer Disputes Redressal Forum Mohali directing the appellants to pay compensation to the tune of Rs.2 lac to the respondent of this appeal jointly and severally, besides costs of litigation of Rs.10,000/-. The respondent of this appeal is the complainant in the complainant and appellants of the appeal are the opposite parties in the complaint and they be referred as such hereinafter for the sake of convenience.
2. The complainant has filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that he entered into an agreement for allotment of the flat comprising of 1866 sq. bearing unit no.007, Type 3-B on first floor in Tower B-1 situated in Paras Panorama in Tehsil Kharar District Mohali in residential apartments in Paras Panorama Kharar for a sum of Rs.38,13,700/-. The letter regarding offer of possession of the said flat was sent to the complainant on 28.03.2011, without providing the basic amenities. The OPs have also started to recover the maintenance charges illegally and forcibly and at a rate, which is irrational and illogical because the OPs have not taken an occupation certificate so far. As per the terms and conditions no.36 of the agreement dated 29.11.2005, the OPs were to deliver the possession of the said premises to the complainant by March, 2009, but the actual possession has been delivered in the month of November 2011. The possession of the above-said plot was delivered to the complainant, without providing the following basic amenities :-
1. Providing the electricity supplied by the Generator Set by the said addressees in spite of Punjab Government Electricity Department.
2. Conveyance deed not made by the addressees due to State Government dues not made by the Addressees.
3. Plaster of Paris in the flat not done as per the agreement Annexure-III attached to the agreement i.e. Annexure C-1.
4. No space of area provided by the addressees for draining the wetting clothes.
5. As per agreement there must be a swimming pool but there is no swimming pool.
6. No provision for water accumulation in the basement as per agreement.
7. Poor workmanship and material in the flat walls (cement plaster falling down).
8. Poor flooring and workmanship of tiles in the living room and kitchen.
9. Poor wooden flooring in the bedrooms.
10. NOC from the concerned authorities not obtained so far.
11. Occupancy certificate from the concerned authorities not obtained so far.
12. No EPABX/CCTV provision is there and it was mentioned in the brochure also.
13. There is no provision of mosquito protection in the windows.
14. There is no provision of local cable connection.
15. No telephone or telegraph facility by the State Government provided.
16. As per agreement club for the members was mentioned but at the spot but there is no club existing.
17. OPs are not entitled to recover the maintenance charges per month.
18. Parking for two cars per flat resident.
19. Rain water entering in the flats.
20. Water accumulation in the front of main entrance of Paras.
21. There should be separate entry for labourers for the construction site (our pirvacy is being affected).
22. Locking of the wooden flooring coming out in the rooms.
23. Quality of flush doors is not as per the agreement.
24. Pipes coming in the servant toilet with improper finishing (No place to sit in the toilet).
25. Noise pollution of Generator in front of flats (person cannot talk also).
26. Washing machine drains directly coming into kitchen.
27. Club membership has been charged but the club is not visible till date, are you going to pay the interest of that amount.
28. No maintenance charges should be charged till the completion of NOC/Occupancy certificate as per the rules.
29. There is no exhaust fan and chimney provision in the Block which was committed and it is mentioned in the brochure also. Please add it.
30. No numbering of flat is mentioned.
31. No parking numbers is mentioned in certain sections.
32. There is no security walls and grills of the apartment.
33. No light in the main entrance of Paras Panorama.
34. No sign board of Paras Panorama in front of main entrance.
35. Rain water harvesting not provided.
36. Single entry and exist for the flat holder for the reasons of security purpose but now Palm village is also using the same path for their apartment.
The State Level Environment Impact Assessment Authority Punjab Government of India, Ministry of Environment & Forests issued the clearance certificate to the OPs for construction of residential complex "Paras Panorama" at Kharar on 28.09.2006 to 02.12.2010, but conditional certificate was issued, which was not complied with by the OPs. The electricity charges are rising unnecessarily. The doors are short of height by 1 to 2 inches. The OPs are recovering the maintenance charges illegally and forcibly. The sewerage flush system is not working satisfactorily, electricity points are not laid properly and water outlet for water purifier and washing machines have not been provided. The basic amenities are not there like fresh water, permanent electricity, roads, parking places and others as detailed above. It is a case of gross deficiency in service on the part of OPs for not providing the basic amenities to the complainant. The sanitary system was not functioning properly because the lower quality material has been used. The sub-standard material and fixtures and fittings were not properly working because some constructional defects leading to percolation/seepage of water from upper floor to lower floor etc. It is also pointed out here that artificial beams to give the beam look have been made by hard board just to cover the sewerage drainage pipes of the upper floor in the roof of drainage room as well as bedroom of the flat of the complainant. They generally remain blocked and started to leak and the drainage water comes from there by the process of seepage in the bedrooms and drawing room. The OPs have been demanding the maintenance charges illegally and forcibly and also at a rate, which is irrational and illogical. The OPs have not taken an occupation certificate, completion certificate so far and they could not demand the maintenance charges because there is no such agreement in the allotment letter or in the brochure. At the time of sale, the OPs were to develop the Paras Panorama Housing Project in the area of 11.6 acres, but later on the OPs have reduced more than half of the area and on that area the construction of another project known as Palm village has been started, whereas, earlier that area Club House, swimming pool, lush green park, cricket practicing ground etc were to be provided to occupants/allottess. The price of the flat was calculated on the basis of development charges, CLU and other expenses on the land measuring 11.7 acres and price of the flat was demanded according to the area only. The complainant alleged deficiency in service on the part of OPs. The complainant has, thus, prayed that OPs be directed to pay compensation for not providing the above basic amenities by reducing the area of the project from 11.7 acres to 5 acres, not to charge maintenance charges from the complainant till actual completion of the project and if charged than the same may be adjusted from IFMS, to issue the completion certificate/occupancy certificate in favour of the complainant and to pay Rs.5 lac on account of delay of possession to the complainant, besides Rs.4,00,000/- as compensation for mental harassment and Rs.22,000/- as costs of litigation
3. Upon notice, OPs appeared and filed written reply and contested the complaint of the complainant vehemently. It was pleaded in the preliminary objections that name of OPs no.2, 4, 5 and 6 are mainly officials or the concerned places of OP no.3. The complaint has been filed to evade the payment of (CAM) Common Area Maintenance charges, as per the agreed terms of the apartment buyer's agreement. The OPs sent Tripartite Maintenance Agreement, vide letter dated 23.03.2011 for signing the same from the complainant and requested to send the same by 15.04.2011, but the complainant has not done it. The complainant was requested, vide letter dated 28.03.2011 to clear the pending dues of Rs.2,61,944.00 up to 25.04.2011, so that possession of the flat would be given to complainant. The possession of the flat was delivered to the complainant on 24.05.2011. As per clause, 56 of the Agreement dated 18.12.2006 only Forum at Gurgaon has jurisdiction to try the case. On merits, OPs denied that it ever entered into an agreement on dated 29.11.2005 with the complainant. The complainant approached the office/company, vide application dated 10.08.2006 with the booking amount of Rs.3,50,000/-, vide check no.674558 dated 09.08.2006 drawn on ICICI Bank Dehradun. It was denied that OPs have offered the possession of the flat without providing basic amenities even after six years. The complainant booked the flat in question on the basis of construction linked payment plan. The OPs requested the complainant in writing to expedite the payment of flat, so that the construction of the apartment be done smoothly without day delay. It was denied that the OPs are recovering the maintenance charges illegally and forcibly and also at a rate, which is irrational and illogical. The OPs are charging maintenance charges, as per clause 19, 20, 23, 33 of the agreement dated 18.12.2006. The maintenance charges are charged by the maintenance agency at a less rate. It was denied that actual possession has been delivered in the month of November 2011. The OPs requested the complainant for offer of possession on dated 28.03.2011 and further requested to make the payment of Rs.2,61,944/- plus Rs.95,250/- and possession was delivered to the complainant on 24.05.2011. As per clause 19 of the agreement dated 18.12.2006, the allottee would be liable to pay the company or its nominated maintenance agency, regularly maintenance and services charges for general maintenance of the building. As per clause 38 of the agreement, the complainant has no right to object the company constructing and continuing in the construction work. As per clause 47 of the agreement, parking space for one car is against the payment of parking charges. It was denied that OPs have reduced more than half of the area and on that area, the construction of another project has been started. The whole project was divided into two phases. It was denied that OPs have not provided basic amenities to the complainant, as promised, as alleged by the complainant. The complainant has not written any complaint to the official of OPs regarding not providing the basic amenities. The complainant checked each and everything at the time of handing over the possession of the flat. The OPs controverted the other averments of the complainant and prayed for dismissal of the complaint.
4. The complainant tendered in evidence, his affidavit Ex.CW-1/1, affidavit of C.P Gupta Civil Engineer Ex.CW-2/1 along with copies of documents Ex.C-1 to Ex.C-10 and Ex.C-10/1 to Ex.C-10/8 and Ex.C-11. As against it; OPs tendered in evidence affidavit of Bawinder Verma Senior Manager Ex.RW-1/1 along with copies of documents Ex.R-1 to Ex.R-32 and photographs Ex.R-33 to Ex.R-42 and documents Ex.R-44 to Ex.R-52, site status report Ex.R-53, affidavit of Sanjay Bhargava General Manager Ex.R-54. On conclusion of evidence and arguments, the District Forum Mohali accepted the complaint of the complainant by virtue of order dated 30.08.2013. Dissatisfied with the order of the District Forum Mohali dated 30.08.2013, the opposite parties now appellants, carried this appeal against the same.
5. We have heard learned counsel for the parties and have also examined the evidence on the record of the case.
6. Affidavit of C.P Gupta Civil Engineer, SDO, PWD (B&R), Ex.CW-2/1 is on the record. He has proved the site Inspection Report Ex.C-10 in this case on the record. He has stated in the Inspection Report that swimming pool does not exist, no cricket practicing ground, ceramic tiles laid are hollow beneath and workmanship is also poor etc. Similarly, he also pointed out other deficiencies in his report on the part of OPs. In his affidavit Ex.CW-2/A on the record, he pointed out the deficiency in service on the part of OPs, as indicated therein. The buyers/allotment agreement entered into between the parties is Ex.C-1. This is fundamental document, governing the terms and conditions of the transaction between the parties. Ex.C-2 is offer of possession of Flat No.B1/1 007 in Paras Panorama. Ex.C-3 letter dated 28.09.2006 addressed to OPs by Punjab Pollution Control Board Zonal Office Patiala regarding No Objection Certificate. The conditions have been laid down in this letter to be complied with. Ex.C-4 is letter addressed to Senior Environmental Engineer Punjab Pollution Control Board Zonal Office -1 Patiala and enclosing the copy of environmental clearance granted to the promoter. Ex.C-6 is Paras Panorama lifestyle for a lifetime for attraction of customers and provision of amenities to be provided are set out in Ex.C-6 on the record, which is in the shape of brochure. Ex.C-7 and Ex.C-8 are site plans of the project. Ex.C-9 is legal notice served upon OPs by the complainant. Ex.C-10 is site inspection report. Similarly, we have also examined other photographs Ex.C-10/1 to Ex.C-10/8 on the record. Ex.C-11 is email
7. To counter this evidence, OPs relied upon affidavit of Bawinder Verma Senior Manager M/s Dynasty Buildwell Pvt. Ltd Ex.RW-1/1, He deposed that the complaint has been filed to evade the payment of Common Area Maintenance charges, as per the agreed terms of the apartment buyer's agreement, vide Ex.R-1. Ex.R-1 is agreement executed between the parties. Ex.R-2 is Tripartite Maintenance Agreement dated 23.03.2011 executed between the parties. Ex.R-3 is offer of possession of Flat No.B1/1 007 in Paras Panorma District Mohali. Ex.R-4 is possession letter of flat to the complainant dated 24.05.2011. ExR-5 is possession certificate. Ex.R-6 is undertaking by the allotee confirming the possession. Ex.R-7 is application for enrollment as member of Residental Welfare Association. Ex.R-8 is application form for Provisional Allotment of residential apartment in Paras Panorama Kharar District Mohali. Ex.R-9 is copy of cheque bearing no.674558 dated 09.08.2006 for a sum of Rs.3,50,000/- paid by the complainant in favour of OPs drawn at ICICI Bank. Ex.R-10 is letter dated 21.11.2006 addressed to complainant by OPs for allotment of residential apartment in Paras Panorama Kharar. Ex.R-11 is letter dated 17.08.2007 addressed to complainant by OPs regarding third installment due for Flat at Paras Panorama Kharar. Ex.R-12 is letter dated 30.11.2007 addressed to the complainant regarding fourth installment due for Union no.007 at Ist Floor in Tower B-1 at Paras Panorama Kharar and Ex.R-12/1 is postal receipt thereof. Ex.R-13 is letter dated 04.01.2008 addressed to complainant by OPs regarding fifth installment due for Unit No.007 at Ist Floor in Tower B-1 at Paras Panorama Kharar and Ex.R-13/1 is receipt thereof. Ex.R-14 is letter dated 30.11.2010 addressed to complainant by the OPs regarding service tax liability. Ex.R-16 is letter dated 13.05.2008 addressed to the complainant by the OPs regarding demand of Rs.5,13,230.00. Ex.R-17 is letter dated 15.09.2010 addressed to complainant by the OPs regarding installment due for Unit No. 007 at Ist Floor in Tower B-1 at Paras Panorama Kharar. Ex.R-19 is letter dated 15.11.2010 addressed to the complainant by the OPs regarding outstanding dues for Unit No.007 at 1st Floor in Tower B-1 at Paras Panorama Kharar Mohali. Ex.R-20 is email. Ex.R-21 is letter dated 15.02.2011 addressed to the complainant by the OPs regarding balance amount of Rs.105854.00 and Ex.R-21/1 is courier receipt thereof. Ex.R-22 is reminder letter dated 01 March 2011 addressed to complainant by Ops regarding outstanding dues against Apartment No.B1/1 007 in Paras Panorama at Kharar. Ex.R-23 is letter dated 04.03.2011 addressed to the complainant by the OPs regarding balance payment of Flat No.B1/1 007 Paras Panorama District Mohali and Ex.R-23/1 is courier receipt thereof. Ex.R-24 is letter dated 16.03.2011 addressed to the complainant by the OPs regarding actual price of the flat and Ex.R-24/1 is postal receipt thereof. Ex.R-25 is letter dated 06.05.2011 addressed to the complainant regarding offer of car parking of apartment. Ex.R-26 is letter dated 6th July 2011 addressed to complainant by the OPs regarding registration of sale deed and Ex.R-26/1 is postal receipt thereof. Ex.R-27 is calculation sheet. Ex.R-28 is letter dated 03.08.2011 addressed to the complainant by the OPs regarding queries related to the matter. Ex.R-29 is copy of sale deed executed between the parties. Ex.R-30 and Ex.R-31 are resolutions passed by the OPs in favour of Mr. Anurag Verma and Mr. M.K. Tripathi Senior Manager of the company. Ex.R-32 is layout site plan and photographs are Ex.R-33 to Ex.R-38. Similarly, photographs Ex.R-43 to Ex.R-52 are on the record. Ex.R-53 is Site Status Report. The Site Status Report is main document, which has been relied upon by OPs and it is Ex.R-52. It has been submitted by Sanjay Bhargava General Manager Facilities Paras RE Facilities Pvt. Ltd in this report that swimming pool is already under final stage of development and available to club members on monthly subscription. The standard cricket net practice ground area is defined and the same is under process of fixation. The walls in the kitchen and bathroom got moisture due to mishandling on the part of the residents in some of the flats.
8. Now, we are left with this point, as to whether the site status report Ex.R-53 submitted by Sanjay Bhargava, vide his affidavit Ex.R-54, is to be relied upon or the report of the expert witness Ex.C-10 proved by C.P Gupta, vide his affidavit Ex.CW-2/1 is to be relied upon? Again, we refer to the buyer's agreement Ex.C-1 on the record. This was executed on 21.01.2010. The agreement Ex.C-1 is coupled with brochures Ex.C-5, which we have referred to above. The OPs represented in the brochure to the customers/applicants that cricket ground shall be provided, along with swimming pool, water bodies, club house, 100% power back up, 24 hrs security system, ample covered parking, air conditions apartment. The complainant was attracted in this project on the basis of the above facilities to be provided by the OPs, as given out in the brochure Ex.C-6. Since C.P Gupta is Engineer and disinterested person and hence we prefer to rely upon his report Ex.C-10 in this regard. This report would prevail over the report of Sanjay Bhargava, as he is connected with the OPs. There is natural bias, in him to help of the OPs. On the other hand, report of C.P Gupta, Ex.C-10, is unbiased and disinterested, which has proved the fact that swimming pool does not exist, cricket practicing ground does not exist, plumbing and sanitary work are not properly done, seepage is seen everywhere, security of residents is not provided properly, as per norms and other deficiencies have been pointed out in report Ex.C-10. We, thus, accept report Ex.C-10 of C.P Gupta, which is proved by his affidavit Ex.CW-2/1 on the record. We, thus, hold that OPs now appellants are proved to be deficient in service to the complainant. The District Forum has, thus, correctly awarded compensation to the complainant now respondent in this appeal. We do not find any ground to disagree with the findings of the District Forum for reversing the order of the District Forum in this appeal. Consequently, the order of the District Forum is sustainable under challenge in this appeal.
9. As a result of our above discussion, we affirm the order of the District Forum Mohali dated 30.08.2013 and resultantly appeal filed by the appellants is ordered to be dismissed.
10. The appellants had deposited an amount of Rs.25,000/- with this Commission at the time of filing the appeal and further deposited Rs.1,0,1,000/- in compliance with the order of this commission. Both these amounts with interest, if any, accrued thereon, be refunded by the registry to the complainant by way of crossed cheque/demand draft after the expiry of 45 days. Remaining amount shall also be paid to complainant by the appellants, as per order of District Forum within 45 days from receipt of the copy of this order
11. Arguments in this appeal were heard on 03.06.2016 and the order was reserved. Copies of the order be communicated to the parties as per rules.
12. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (J.S GILL) MEMBER (H.S.GURAM) MEMBER June 6 , 2016 (ravi)