State Consumer Disputes Redressal Commission
Sat Paul Gujral vs M/S Sandwood Infratech Projects Pvt. ... on 18 February, 2013
STATE CONSUMER DISPUTES REDRESSAL
COMMISSION,
UNION TERRITORY, CHANDIGARH
First
Appeal No.
427 of 2012
Date
of Institution
20.12.2012
Date
of Decision
18.2.2013
Sat Paul Gujral, Aged
73 years, son of late Sh.Ram Narain Gujral, Resident of B-47, Spangle Condos,
Gazipur, Dhakoli Zirakpur 140603
.Appellant
Vs.
M/s Sandwood Infratech
projects Pvt. Ltd., SCO No.222-223, Sector 34-A, Chandigarh, through its Managing
Director.
.
Respondents
BEFORE: JUSTICE SHAM SUNDER, (Retd.) PRESIDENT
MRS. NEENA SANDHU, MEMBER
Argued by: Sh. Aman Bansal, Advocate for the appellant.
Sh. I.P. Singh, Advocate for the respondent.
MRS.
NEENA SANDHU, MEMBER This is an appeal filed by the appellant/complainant against the order, dated 6.11.2012 passed by District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as District Forum only) vide which, it dismissed the complaint.
2Briefly stated, the facts of the case, are that the complainant purchased one Apartment No.B-47 (Penthouse) at 6th Floor in Spangle Condos, village Dhakoli MC Zirakpur, District Mohali, consisting of 3 Bed Rooms-cum-Drawing Dining with Terrace, including Splash Pool & covered garage, from the Opposite Party on 24.10.2008 at the Basic Price of Rs.52,75,000/- plus Rs.One Lakh as parking charges (Ann.C-1 & C-2). It was stated that the complainant made the full & final payment to the Opposite Party, through cheque by 19.5.2010. It was further stated that the complainant was assured that a big car parking in the sum of Rs.1.00 lakh, as mentioned in the Agreement would be provided to him, but from the communication dated 25.6.2010 (Annexure C-2), it was revealed that the Opposite Party had charged Rs.2.00 lakhs from him for car parking, which was illegal. It was further stated that the complainant deposited more than 90% of the total amount, in, advance, in the year 2009, on the assurance of the Opposite Party that the possession would be handed over to him by 1.4.2009, but it did not do so. The possession was, ultimately, handed over to the complainant only on 11.4.2010.
However, the letter for handing over the possession was of 01.04.2010. It was further stated that though the penalty for delayed possession, had been deducted by the Opposite Party, but the apartment, which was handed over to the complainant was not complete and the material used by it (Opposite Party) was of inferior quality. It was further stated that the construction work done by the Opposite Party was not upto the mark. It was further stated that the complainant vide his e-mail dated 7.6.2010, followed by other letters, pointed out the defects, to the Opposite Party, such like bed rooms were leaking, water was dripping resulting into damage of bed-sheets & mattresses and there was low water pressure.
The Opposite Party did not take any positive steps, to remove the defects, aforesaid in the apartment, and failed to render proper & good service. It was further stated that thereafter the complainant served a legal notice dated 7.9.2011 on the Opposite Party, but to no avail. Hence this complaint was filed.
3In its reply, the Opposite Party, admitted the factual matrix of the case. It was stated that though, at the time of booking the apartment and execution of the Agreement, dated 11.12.2008, the complainant opted for small car parking area and the price of the same was Rs.1.00 lakh, but at the time of taking possession of the Apartment, he (complainant) himself wished to own a Big Car Parking Space, as per his requirement, and the price of the same was Rs.2.00 lakh. It was further stated that, as per the choice of the complainant, a big car parking was sold/allotted to him, and, in lieu of that, an amount of Rs.2.00 lakh was deposited by him without any objection. It was further stated that, as per the Agreement dated 11.12.2008 Ann.C-1, the possession of the flat, was to be handed over, within a period of 30 months, from the date of execution of the same, whereas the same was handed over within a period of about eighteen months. It was further stated that the complainant was fully satisfied with the construction, as well as quality of work. It was further stated that apart from the flat, in question, the complainant as well as his relatives purchased other flats also.
This, in itself, proved that the complainant was fully satisfied with the Opposite Party. It was further stated that the flat in question, constructed was, as per the sample flat shown and the standard material was used. It was further stated that the Opposite Party was maintaining high standards, in quality control, as well as material. It was further stated that there were no defects in the apartment.
Inspite of that, as and when any complaint, by the complainant or any apartment holder, was made, the same was promptly attended to by the Maintenance Staff of the Opposite Party.
It was further stated that complainant tampered with the construction, as well as the fittings, including the bathroom fittings etc., which resulted into damage of the apartment and further leakage for which he was responsible and the same could not be termed as deficiency in service. All other allegations, levelled by the complainant, in the complaint, were denied. It was further stated that there was no deficiency, in service, on the part of the Opposite Party, nor it indulged into unfair trade practice.
4The parties led evidence, in support of their case.
5After hearing the Counsel for the parties, and, on going through the evidence and record, the District Forum, dismissed the complaint, as stated in the opening para of this order 6 Aggrieved by the order, passed by the learned District Forum, the appellant/complainant, has filed the instant appeal.
7We have heard Counsel for the parties, and, have perused the record, carefully.
8The Counsel for the appellant, submitted that the complainant purchased the apartment in question on 24.10.2008 from the Opposite Party, at the basic price of Rs.52,75,000/- and possession thereof was given to him on 11.4.2010, but the letter of handing over possession was of 1.4.2010. It was further submitted that the construction of apartment was of inferior quality and the same was not as per the specifications of the sample flat, shown to the complainant and the material used was of inferior quality. It was further submitted that on 7.6.2010, the appellant sent an email to the Opposite Party, and pointed out the defects, in the apartment, in question. It was further submitted that during the pendency of the complaint before the District Forum, the complainant requested to appoint a Local Commissioner but the genuine request of the appellant was not considered by the District Forum. However, at the belated stage on 13.8.2012, the District Forum, accepted the application of the Opposite Parties, and appointed a Local Commissioner. It was further stated that the said Local Commissioner gave his report, on mere presumptions and assumptions and the District Forum by placing reliance on the report of the Local Commissioner wrongly dismissed the complaint without appreciating the material facts and documents, placed on record. It was further submitted that the appellant/complainant paid a huge amount for splash pool, but the Opposite Party without consent of the appellant, removed the same. It was further submitted that the District Forum wrongly placed reliance on the report of the Local Commissioner that the said pool was removed with the consent of the complainant. It was further submitted that the respondent charged extra amount for the car parking which was in violation of the judgment of Apex Court in civil appeal No.2544 of 2010 titled as Nahalchand Laloochand Pvt. LTd. Vs. Panchali Cooperative Housing Society Ltd. decided on 31.8.2010 wherein it was held that the builder has no right to sell parking areas as these are neither flats nor appurtenant to flats. Hence there was deficiency on the part of the Opposite Party.
9On the other hand, the Counsel for the respondent, submitted that the possession of apartment was handed over to the complainant and he after thoroughly inspecting the same, gave his satisfactory note, meaning thereby there was no defect therein at that time. It was further submitted that after taking possession of apartment, the appellant/complainant made addition/alterations in the same. It was further submitted that the appellant/complainant tampered with the Splash Pool, tiles and flooring of the Splash Pool and put different tiles and water fittings over the same due to which the water proof sealing got damaged, which caused certain leakage in the flat for which he was himself responsible. Even then the Opposite Party conducted necessary repairs from time to time despite the fact that the damage was caused by the appellant. It was further submitted that in the process of removing the seepage, from the roof, the Splash Pool was removed by the Opposite Party, with the consent of the complainant, and this fact was corroborated from the report of the Local Commissioner. It was further submitted that the complainant booked a small car parking for Rs.1.00 lac, but at the time of taking possession he opted for a big car parking for an amount of Rs.2.00 lac and deposited the same without any objection till the date of issuance of legal notice. Hence there was no deficiency on the part of the Opposite Party.
10The first issue, before us, for determination, is, whether the Opposite Party charged excess amount from the appellant/complainant for car parking space, or the appellant himself opted for a big car parking. It is evident from the Agreement Annexure C-1 that at the time of allotment of flat the price of the car parking as per space was Rs.1.00 lac. However, in Annexure C-2 issued by the Opposite Party, in favour of the appellant, the details of amount received by it from the appellant for the apartment, in question, have been given, wherein it has been clearly mentioned that it had received Rs.2.00 lac as price of Big Car Parking. It is further evident from this Annexure that right below the details of payments made by the appellant it was clearly mentioned that In case of any queries, please feel free to contact our office or mail us on [email protected]. Thus it is quite evident that the appellant/complainant could have raised objection, when Rs.2.00 lacs were charged for a big car parking, if according to him, the same were excess, but he did not do so, which establishes that he himself opted for the big car parking at the time of possession of apartment and paid a sum of Rs.2.00 for the same. This fact is further evident from Annexure O-1 receipt thereof. Hence the contention of the appellant that the Opposite Party charged him in excess for car parking is not sustainable. The same is liable to be rejected.
11The second issue, to be determined, is as to whether the Opposite Party removed the splash pool with the consent of the appellant or not. In this regard, the case of the Opposite Party, was that the appellant tampered with the splash pool, tiles and flooring of the same were removed by him. It was further case of the Opposite Party that different tiles were laid and water fitting over the same was installed due to which the water proof sealing was got damaged which caused certain leakage, in the flat, which was due to his own negligent act. In order to remove the defect/leakage the splash pool was removed that too, with the consent of the complainant/appellant, which is further corroborated from the report of the Local Commissioner duly appointed by the District Forum wherein it was clearly recorded that earlier there was a water pool on the terrace which stands removed by the Opposite Party with consent./asking of the complainant in the process of removing the seepage from the roof. On the other hand, the contention of the appellant was that the Opposite Party removed the splash pool without his consent.
12We find force in the contention of the Opposite Party. Perusal of the record shows that, in the complainant, the complainant never raised the issue of removal of splash pool. He raised the issue only in the rejoinder. Had the complainant any grievance towards the removal of splash pool, he could have raised the same, right from the beginning in his complaint, which establishes that he himself gave his consent for the same. This fact is further corroborated from the report of the Local Commissioner who in his report recorded that the splash pool was removed with the consent of the appellant.
13The next Contention of the appellant/complainant, was that the apartment was of inferior quality and there was leakage. We do not find merit, in this contention of the appellant, because in Annexure O-12, possession letter of the apartment, in question, which is duly signed by both the parties, it is clearly written that the apartment has been duly inspected by you and you have received possession thereof after satisfying yourself in all respects. Please note that hereafter we shall not be held responsible or liable with regard to any quality or construction in any manner whatsoever. Meaning thereby the appellant gave his satisfaction note. Had he any grouse he would not have signed the same. Thus, whatever the defects thereafter occurred, in the apartment, were due to the negligent act of the appellant,. Even then as per the Opposite Party they repaired whatever defect were there in the apartment, free of cost and now there is no defect in the same, which is evident from the report of the Local Commissioner duly appointed by the District Forum that he did not find any drawback in the apartment. Hence in this situation, we do not find any merit in this appeal and the same is liable to be dismissed. The order of the District Forum requires no interference being just and legal.
14In view of the above, we do not find any merit in the appeal. Accordingly the same is dismissed with no order as to costs. The order of the District Forum is upheld.
15Copies of this order be sent to the parties, free of charge.
Pronounced. Sd/-
18.2.2013 [JUSTICE SHAM SUNDER [RETD.] PRESIDENT Sd/- [NEENA SANDHU] MEMBER mp