State Consumer Disputes Redressal Commission
Sanjiv Kumar Pandey vs The Managing Director, Omaxe, ... on 22 March, 2018
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
CHANDIGARH.
Consumer Complaint No.190 of 2017
Date of institution : 03.04.2017
Date of decision : 22.03.2018
Sanjiv Kumar Pandey, aged 46 years, son of Late Shri J.N. Pandey,
resident of Flat No.427, First Floor, Silver Birch (OMAXE),
Mullanpur, Punjab.
.......Complainant
Versus
1. The Managing Director, OMAXE, Chandigarh Extension
Developers Pvt. Ltd., SCO 139, First Floor, Sector 8-C,
Madhya Marg, Chandigarh 160 008.
2. The Authorised Signatory for OMAXE Chandigarh Extension
Developers Pvt. Ltd., SCO 139, First Floor, Sector 8-C,
Madhya Marg, Chandigarh 160 008.
E-mail ids of OPs:
[email protected]
[email protected]
[email protected]
........Opposite Parties
Consumer Complaint under Section 17
(1)(a)(i) of the Consumer Protection Act,
1986.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mrs. Kiran Sibal, Member
Present:-
For the complainant : Ms. Gagandeep Grewal, Advocate For the opposite parties: Sh. Bhupinder Singh, Advocate JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT:
The complainant, Sanjiv Kumar Pandey, has filed this complaint under Section 17(1)(a)(i) of the Consumer Protection Act, Consumer Complaint No.190 of 2017 2 1986 (in short, "C.P. Act") for issuance of following directions to the opposite parties:-
i) to refund an amount of ₹3,19,923/- deposited with the opposite parties for increased area of Flat No.427 along with interest @ 18% per annum from the date of deposit till realization;
ii) to pay an amount of ₹3,00,000/- as compensation for unfair trade practice and deficiency in service on the part of opposite parties;
iii) to pay an amount of ₹1,00,000/- as compensation for causing mental torture, harassment, shock and agony to the complainant;
iv) to pay an amount of ₹1,00,000/- towards punitive damages; and
v) to pay an amount of ₹22,000/- towards litigation expenses.
Facts of the Complaint:
2. Brief facts, as averred in the complaint, are that the complainant and his wife booked a residential independent floor with the opposite parties and provisional allotment of Flat No.427, on First Floor, measuring approximate area of 1500 square feet in "SILVER BIRCH" at Mullanpur, District SAS Nagar, Punjab, was made to them at a Basic Sale Price of ₹2,333.33P per square foot for a total sale consideration of ₹35,00,000/- excluding Preferential Location Charges, Club Charges, EEC charges and other charges, vide letter dated 7.7.2010. It is further averred that the complainant deposited Consumer Complaint No.190 of 2017 3 the total amount towards the cost of the Flat/Unit as per the payment schedule signed between the parties. On 14.12.2013 the opposite parties informed that the area of the flat had been increased to 1640 square feet instead of 1500 square feet i.e. increase of approximately 140 square feet and demanded ₹3,19,022.01P on that account. The complainant initially objected to the said demand but later on deposited ₹3,19,923/- on 13.1.2014 for the said increased area. It is further averred that on 14.4.2015 opposite party No.2 handed over possession of the flat in question with less area i.e. measuring 1525.53 square feet instead of 1640 square feet.
Thereafter the complainant requested the opposite parties to refund the excess amount charged under the pretext of increased area. However, no action was taken by them in-spite of representation sent by the complainant on 24.9.2016 to opposite party No.1 for refund of extra amount on account of shortfall in the built-up area of the flat. The opposite parties flatly refused to refund the amount charged illegally from the complainant. This act and conduct of the opposite parties amounts to deficiency in service and adoption of unfair trade practice and restricted trade practice on their part. Hence, the present complaint for issuance of above mentioned directions to the opposite parties.
Defence of Opposite Parties:
3. Upon notice opposite parties appeared and filed joint reply taking preliminary objections to the effect that case raises complex questions of fact and would involve detailed evidence. The same ought to have been referred to Arbitration under Section 8 of the Consumer Complaint No.190 of 2017 4 Arbitration & Conciliation Act, 1996 in terms of clause 50(c) of the Allotment Letter/Agreement dated 15.9.2010. This Commission does not have territorial jurisdiction to entertain the instant matter as clause 50(c) of the Allotment Letter/Agreement dated 15.9.2010 clearly stipulates that Courts at Chandigarh and Delhi shall have jurisdiction in all matters in connection with the allotment. This Commission also does not have pecuniary jurisdiction as amount of claim together with interest and also keeping in view the value of the subject-matter, exceeds ₹ One Crore. The complainant is not a 'consumer' as defined under Section 2(d) of the C.P. Act as the complainant had already been handed over possession of the Unit/Flat in question without any objection from him and the present complaint having been filed belatedly. Since no protest was ever made by the complainant at the time of handing over of the possession, therefore, the question of seeking refund at this stage does not arise. The complaint is barred by limitation as the complainant is seeking refund of the amount deposited by him on 13.1.2014 and more than two years' period has already been lapsed.
On merits, the booking and purchase of the flat/unit by the complainant in the manner stated in the complaint has not been denied. The payment of the amount towards the cost of the flat/unit in question has also not been denied; though it is alleged that the same was not made in time. However, it is submitted that initially allotment is always made on tentative basis, which is subject to increase or decrease to be ascertained on the completion of the project. In the instant case, since an approximate area of 140 Consumer Complaint No.190 of 2017 5 square feet was found to be more at the time of completion, therefore, demand was raised, which was duly paid by the complainant without any protest. The alleged representation dated 24.9.2016 was never addressed or communicated upon the opposite parties. Question of refund of any extra amount, as alleged by the complainant, does not arise. The complaint in question is an afterthought and has been filed with an ulterior motive to cause undue harassment to the opposite parties. Denying all other allegations made in the complaint a prayer for dismissal of the complaint was made.
Replication to the reply:
4. The complainant filed replication to the reply filed by opposite parties denying the averments made in the same and reiterating the averments made in the complaint.
Evidence of the Parties
5. To prove his case, the complainant tendered in evidence his own affidavit as Ex.CA, along with documents Ex.C-1 to Ex.C-8, Ex.C-9(a) to Ex.C-9(k), Ex.C-10, Ex.C-10(a) to Ex.C-10(c) and Ex.C11. On the other hand, the opposite parties proved on record affidavit of their Authorized Representative Deepanjit Singh, as Ex.OP/A and documents Ex.OP-1 to Ex.OP-9, including affidavit of Deepak Vashistha, G.M. Planning Department as Ex.OP-7.
6. We have heard learned counsel for both the sides and have gone through the record carefully.
Consumer Complaint No.190 of 2017 6Contentions of the Parties:
7. Learned counsel for the complainant has vehemently contended that the opposite parties increased the super area of the flat/unit, in question, without the consent of the complainant or issuing any notice to him. Initially, the area of the flat, in question, was 1500 sq. ft., as is evident from Allotment Letter, Ex.C-3, which has been subsequently increased to 1640 sq.ft. and the complainant was charged ₹3,19,923/- on 13.1.2014. However, when the possession was taken over by the complainant and the area of the flat/unit was measured it was found less, which itself is a clear-cut case of deficiency in service and adoption of unfair trade practice and restricted trade practice on the part of the opposite parties. It has further been contended that the report of the Local Commissioner dated 19.2.2018 has been placed on record and a perusal of the same clearly reveals that the opposite parties charged him in excess as the total super area is much less than 1640 square feet. Hence, the complaint is liable to be allowed and the directions, as prayed for therein, are liable to be issued to the opposite parties.
8. Per contra, learned counsel for the opposite parties has vehemently contended that initially allotment is always made on tentative basis and, therefore, approximate area is mentioned in the allotment letter/Buyer's Agreement. However, it is specifically agreed as per Clause 4 of Buyer's Agreement that the area in question was tentative and subject to increase/decrease and the same was to be ascertained on the completion of the development of the project. In the case in hand since the approximate area of 140 Consumer Complaint No.190 of 2017 7 square feet was found to be more at the time of completion, therefore, demand was raised for ₹3,19,022.01P, which is just and legal. The report of the Local Commissioner is not legal as he has not taken into consideration common areas while calculating the total area qua the unit/flat of the complainant. Moreover, the increased area is not more than 10% of the total area of the flat. Increase and decrease in the area of the property is possible, keeping in view the circumstances at the time of delivery of actual possession thereof. At the time of allotment, the area of the property/flat is always tentative. It has been, thus, contended that no illegality was committed while increasing the area and receiving the due charges on account thereof and there is no deficiency in service or adoption of unfair fair trade practice or restricted trade practice on the part of the opposite parties. There is no merit in the present appeal and the same is liable to be dismissed. He relied upon following judgments:-
i) "Ajay Singh v. Omaxe Chandigarh Extension Developers Ltd." reported in 2015(3) C.P.J. 15 (U.T. State Commission, Chandigarh; and
ii) "T.K.A. Padmanabhan v. Abhiyan CGHS Ltd." reported in 2016(2) CPJ 273.
Consideration of Contentions
9. We have given our thoughtful consideration to the rival contentions of the parties.
10. So far as the objection of the opposite parties with regard to referring the matter to the Arbitrator under Section 8 read with Section 5 of the Arbitration and Conciliation Act, 1996, is concerned, Consumer Complaint No.190 of 2017 8 the same has already been decided by this Commission in Misc. Application No.1049 of 2017 filed by the opposite parties and as such, need not decide again.
11. So far the objection of the opposite parties to the effect that this Commission has no territorial jurisdiction to entertain and decide this complaint is concerned, the same is also not tenable as the flat/unit in question is situated in District SAS Nagar, Mohali, Punjab, within the territorial jurisdiction of this Commission and the same cannot be restricted by adding any clause in the Allotment Letter or Buyer's Agreement etc. by the Builder.
12. So far as the objection raised by the opposite parties that the pecuniary jurisdiction of this Commission is barred, as the value of claim, compensation, including interest sought exceeds ₹1.00 Crore, is concerned, it is relevant to mention that the complainant is seeking only refund of ₹3,19,923/- along with interest at the rate of 18% per annum and compensation amount of ₹5,00,000/- on different accounts besides costs. In I (2017) CPJ 1 (NC) (AMBRISH KUMAR SHUKLA & 21 ORS. v. FERROUS INFRASTRUCTURE PVT. LTD) (NC) it was made clear by the Hon'ble National Commission that it is the value of the goods purchased or the services hired, which is to be taken into consideration and not the compensation for determining the pecuniary jurisdiction. Since the value of the flat/unit is ₹35,00,000/- and if the reliefs claimed are also added in it, the amount does not exceed ₹ One Crore, therefore, this Commission has got the pecuniary jurisdiction to entertain and decide this Consumer Complaint No.190 of 2017 9 complaint. Thus, the said objection of the opposite parties is belied, being baseless.
13. So far as the plea of the opposite parties that the complaint is barred by limitation is concerned, it is a continuous cause of action. Obviously in such cases limitation starts from the date when it comes to the notice of consumers that area of the flat/unit allotted to them is less. The possession was handed over to the complainant on 14.4.2015 and after getting the possession of the flat/unit in question the complainant became apprehensive about the area of the flat allotted to him. Accordingly he got measured the same on 1.10.2016 from the Executive Engineer (Civil), Punjab Police Housing Corporation Limited. Therefore, limitation in this case starts from that date onwards. The present complaint was filed on 3.4.2017 well within the period of limitation of two years prescribed under the C.P. Act. Therefore, there is no merit in this objection of the opposite parties also and the same is hereby rejected.
14. Admittedly the complainant and his wife got booked a flat in the above mentioned project of the opposite parties, vide Application Form, Ex.C-1 and they were allotted Provisional Allotment of the Flat/Unit in question, vide letter dated 7.7.2010, Ex.C-2. Admittedly it has been mentioned in the provisional allotment letter that the built up area of the flat in question is 1500 square feet. Allotment Letter/Buyer's Agreement dated 15.9.2010 in respect of the flat/unit in question signed between the parties is Ex.C-3. As per Annexure- B (Part-II) thereof, the Basic Sale Price of the flat/unit in question was ₹2,333.33 per square foot. Admittedly the complainant paid the Consumer Complaint No.190 of 2017 10 full amount towards the price of the flat/unit in question. However, vide letter dated 14.12.2013 the opposite parties raised a demand of ₹3,19,022.01P on the ground that the area of the flat/unit had been increased from 1500 square feet to 1640 square feet. That amount was also got deposited by the complainant and he got the possession of the flat/unit in question on 14.4.2015. On suspicion the complainant got the area measured from the Executive Engineer (Civil), Punjab Police Housing Corporation Limited on 1.10.2016, who after measurement found the same to be 1525.53 square feet instead of 1640 square feet. On the other hand, the opposite parties claimed that the area of the flat/unit is not 1525.23 square feet and is much more.
15. The dispute in the present case is only with regard to the measurement of the super area of the flat/unit in question and for the decision of the same Shri Randhir Garg, Architect was appointed as a Local Commissioner, vide order dated 10.1.2018. The fee of the Local Commissioner was assessed at ₹20,000/- to be shared by both the parties equally. Accordingly the said Architect visited the site at 11.00 A.M. on 6.2.2018 and measured the flat/unit in the presence of the parties. As per his report, the total covered area is 1402.27 square feet and area of Front Balcony is 53.00 square feet, area of Rear Balcony Main is 86.50 square feet; area of Rear Balcony Small is 21.54 square feet and one-third of total Mumty area common for three flats is 53.54 square feet. Therefore, the total super area i.e. Covered Area+ Area under Balconies and Mumty comes to 1616.85 square feet (i.e. 1402.27 + 53.00 + 86.50 + 21.54 Consumer Complaint No.190 of 2017 11 + 53.54). However, opposite parties raised objections to the report of Local Commissioner and averred that Local Commissioner did not take into consideration appropriate share of the following areas:-
1. Projection of Mumty - 1/3rd share
2. Extra area and ground floor entrance - 1/6th share
3. Shaft Area -1/3rd share It is further averred therein that above said three areas are also common areas and proportionate areas are required to be taken into consideration while calculating the total area qua the unit/flat of the complainant. A chart has been annexed as Annexure A-1 mentioning the areas which have not been taken into consideration while calculating the total super area, which comes to 33.92 square feet and on adding the same total area of the unit/flat would come to 1650.81 square feet. A drawing Annexure A-2 reflecting the said three facts has also been annexed with those objections.
16. The objections so raised by opposite parties have already been taken care of by the Local Commissioner in his report dated 6.2.2018 regarding adding of one third share of the projection of mumty, which is common area for three flats/units and with regard to 1/3rd share of shaft area. The third objection regarding 1/6th share of extra area and ground floor entrance area is also not tenable as there is no mention in the Buyer's Agreement or Allotment letter with respect to the same. These objections so raised by opposite parties are frivolous and are hereby rejected.
17. So far as the judgment of the U.T. State Commission in Ajay Singh's case (supra) is concerned, the facts of the same were Consumer Complaint No.190 of 2017 12 different as in that case only the question of increasing the area of the flat was involved. In the present case, price has been charged for 1640 square feet whereas actually the area comes to 1616.15 square feet. Similarly the facts of the case in T.K.A. Padmanabhan's case (supra) were also different. Therefore, both the judgments relied upon by the learned counsel for the opposite parties are not applicable to the facts of the present case.
18. Opposite parties charged the complainant for 1640 square feet at the rate of ₹2,333.33P per square foot and as per the report of the Local Commissioner the total super area comes to 1616.85 square feet. Thus, extra area for which opposite parties charged from the complainant comes to 23.15 square feet (1640.00 minus 1616.85) and the excess amount charged by them comes to ₹2,333.33P x 23.15 = ₹54,016.58P rounded off to ₹54,000/-. Thus, the complainant is held entitled to refund of ₹54,000/- on account of excess amount charged by opposite parties from him.
19. In view of our above discussion, this complaint is allowed and following directions are issued to the opposite parties:-
i) to pay a sum of ₹54,000/- along with interest at the rate of 12% per annum from the date of deposit i.e. 13.1.2014 till the date of payment; and
ii) to pay a sum of ₹30,000/- as compensation for harassment and mental agony including litigation expenses.Consumer Complaint No.190 of 2017 13
20. Compliance of this order shall be made by the opposite parties within a period of one month from the date of receipt of certified copy of this order.
21. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (MRS. KIRAN SIBAL) MEMBER March 22, 2018 Bansal