State Consumer Disputes Redressal Commission
Dr. Raj Kumar Gupta vs Sneh Deep Aggarwal on 13 July, 2015
F.A. No. 1413 of 2014 1
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.1413 of 2014
Date of institution : 17.10.2014
Date of decision : 13.07.2015
1. Dr. Raj Kumar Gupta son of Sh. Om Parkash Gupta;
2. Dr. Soninder Kaur w/o Dr. Raj Kumar Gupta;
Both residents of Flat No.404-A, Garden Heights, Sirhind Rajpura Bye
Pass, Patiala.
.......Appellants/Complainants
Versus
1. Sneh Deep Aggarwal owner of Pavni Buildwell Pvt. Ltd. Regd. Office R-
52, New Manglapuri, Mandi Road Mehrauli, New Delhi-110030.
2. Arjan Aggarwal, Director, Pavni Buildwell Pvt. Ltd. Regd. Office R-52,
New Manglapuri, Mandi Road Mehrauli, New Delhi-110030.
3. Dr. Sachin Gupta, M.D., Pavni Buildwell Pvt. Ltd. Regd. Office R-52,
New Manglapuri, Mandi Road Mehrauli, New Delhi-110030.
4. Estate Manager, Garden Heights Sirhind-Rajpura Bye Pass, Patiala.
......Respondents/Opposite Parties
First Appeal against the order dated
11.09.2014 passed by the District
Consumer Disputes Redressal Forum,
Patiala.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Jasbir Singh Gill, Member
Mrs. Surinder Pal Kaur, Member.
Present:-
For the appellants :Sh. V.S.Rana, Advocate
For the respondent :Sh. S.R.Bansal, Advocate
MRS. SURINDER PAL KAUR, Member
ORDER
The appellants/complainants (hereinafter referred as the F.A. No. 1413 of 2014 2 complainants) have filed the present appeal against the order dated 11.09.2014 passed by the District Consumer Disputes Redressal Forum, Patiala, (hereinafter referred as "the District Forum") in Consumer Complaint No. 13/247 dated 15.07.2013 vide which the complaint filed by the complainants was dismissed with costs of Rs.10,000/-.
2. A consumer complaint filed by the complainants under Consumer Protection Act 1986 (in short `the Act') against the Respondents/ Opposite Parties(hereinafter referred as OPs) wherein they averred that the OPs being the promoters and builders had launched the residential flats scheme known as Garden Heights at Patiala. In the advertisement regarding sale of flats of Unit-A of the said scheme, the OPs had specifically mentioned that these flats were of Super Area of 1740 Sq. ft. On 10.9.2009, they applied for the flat and paid Rs.2 Lacks in advance vide cheque No.031048 dated 1.09.2009, drawn on State Bank of Patiala, Sai Market Branch, Patiala, Flat No.404, 4th Floor Block A was allotted to them in the said Garden Heights and an agreement to this effect was executed between the parties on 10.9.2009. Possession of the flat was given to them on 22.4.2011. On delayed delivery of possession as per terms and conditions of the agreement they were entitled to penalty of Rs.3/-per Sq. ft. per month for 14 months which comes to Rs.73080/- along with interest @ 18% from the due date till the realization of the amount. Before filing that complaint the complainants had filed another complaint regarding the sub stranded material/ construction of flat and deficiency in other common/ connected services against the OP. The Distt Forum Patiala decided the case in their favour on 9.4.2013 with damages payable to complainant of Rs 2 lacs. However, there was doubt in their mind that the area of the flat in question was less than the prescribed area and the same was got measured by them from the architect. It was found that the area of the flat was 1488 Sq. ft. instead of 1740 Sq.ft. and the F.A. No. 1413 of 2014 3 difference comes to 252 sq. ft. In September, 2009 the OPs got deposited Rs.75,000/- as covered Car parking area in addition to the booking amount. They had also paid Rs. 60,000/- for additional car parking but the same was not allotted for four years and as such they were entitled to interest on the amount paid by them to the Ops They made request to Ops to refund the amount of 75,000/- and 60,000/- totaling Rs 1,35,000 along with interest but despite making repeated requests and issuance of legal notices dated 16.3.2011 & 17.6.2013, neither the OPs refunded the said amount nor provided the total 1740 Sq. ft. area as per allotment letter. The Ops put off the matter on the one pretext or the other. The above said act of the Ops amounted to deficiency in services and unfair trade practice on the part of the Ops. With the aforesaid allegations, they filed the complaint before the District Forum seeking the following directions against the OPs:-
(i) to provide complete area measuring 1740 Sq. ft as per agreement/allotment letter entered between the parties or in the alternative to return the amount proportionate to 252 Sq.ft.
i.e.Rs.1650/-per sq.ft, which comes to Rs.4,15,800/- along with interest @ 24% from per annum 10.9.2009 till the date of its realization.
(ii) to refund Rs.1,35,000/- or to provide covered car parking area i.e. 2 garages for car parking.
(iii) to pay penalty of Rs.73,080/- for 14 months @ Rs.3/-per Sq. ft per month as per clause 25(b) of the agreement dated 10.9.2009.
(iv) to pay compensation to the tune of Rs.10 Lacs on account of deficiency in service and unfair trade practice, mental harassment, agony and tension.
(v) to pay Rs.5500/- as litigation charges.
F.A. No. 1413 of 2014 4OP no 2 did not come present before the Distt forum in spite of due service. As such was proceeded against Ex parte vide order dated on 31.3.2014. The Distt. Forum had not issued the notice to OP No.1 and 3 being unnecessary parties.
3 The complaint was contested by OP No.4 only. Who filed the written reply by taking the preliminary objections that the complaint is time barred. The complainants had not come to the Distt Forum with clean hands The case of the complainants did not fall under the ambit of the Act, rather it falls under the Specific Relief Act.They had no locus standi to file the instant complaint. The complaint is frivolous and false and is liable to be dismissed with special costs of 1,00,000/-. OP No1, OP No 2 and OP No3 were unnecessary made as parties whereas they had no concern with Pavani Buildwell Pvt Ltd. Earlier the complainants had filed a complaint which was partly accepted by the District Forum vide judgment dated 9.4.2013 and against the said judgment they had filed the appeal before the Hon'ble State Commission and during the pendency of the appeal the instant complaint was not maintainable and was barred by law. The complainant was estopped from taking such pleas with regard to the lesser area of the flat, at this belated stage as the complaint filed by the complainant regarding the similar facts had already been decided by the Distt Forum ,Patiala vide its judgment/order dated 9.4.2013. The matter was sub-juice and they had intentionally filed second complaint only to harass the OPs. They reserve a right to initiate criminal proceedings against them and the complainants themselves had relinquished their claim regarding the allotment of parking vide undertaking given on 19.10.2013 and now they had no right to file the present complaint. On merits It was admitted that the Super Area of flat was 1740 Sq. ft. It was denied that the complainant had only believed on advertisement. Before purchasing the flat, they had got the sample flat inspected and thereafter F.A. No. 1413 of 2014 5 they had done each and every thing. In all the documents executed between the parities it had no where mentioned that the covered area of flat was 1740 sq. ft. It was always mentioned that the flats are having super area of 1740 Sq. ft. The complainants had signed all the documents after understanding the contents mentioned therein and they submitted that all their claims stand satisfied. In the earlier complaint filed by the complainants bearing No.CC/12/172 of 20.4.2012, titled as 'Dr. Raj Kumar Gupta & another Vs. Pavani Buildwell & others', decided on 9.4.2013, they had pleaded that Rs.73080/- was paid to them as penalty for delayed possession and it was held by the Hon'ble Forum in Para No.38 of the judgment 'that the complainants had not claimed any penalty and interest and as such no relief was given to the complainants in this regard'. It was also alleged that the complainants settled the matter with them and the amount of penalty was adjusted on 22.4.2011and now they had deliberately concealed this important fact only to misguide the Hon'ble Forum. The complainants had tried to misinterpret the super area as covered area 1740 Sq.ft. and had twisted the facts as per their own convenience. Sh.V.k.Goyal, Architect might have given the wrong report at the instance of the complainants in order to concoct a false story knowing fully how the super area and carpet area of a flat is to be calculated. The said Architect while appearing in the Court had stated on oath that he had only inspected the Flat No.110-B in Garden Heights, which clearly proved that the flat in question was never inspected by the said Architect. There are two types of car parking in the Garden Heights i.e. covered parking in stilts and open to sky parking. Since the complainants has started residing in the flat, and are parking their two cars. Parking area was always allotted by way of draw of lots between the concerned parking owners but some parking space in the Block of the complainant was not earmarked for use as some parking space was lying vacant and as such specific number of F.A. No. 1413 of 2014 6 parking was not allotted and it cannot be said that the parking was not provided to the complainants. The complainants had also taken this plea in their earlier complaint which was rejected by the District Forum vide order dated 9.4.2013 but the complainant had not approached the Hon'ble Commission against the said order and now they could not raise the same point again. The complainants had tried to twist the facts of the case regarding open car parking. The complainants had been allotted covered car parking in stilt area and they had given in writing to that effect and they had relinquished all their claim with regard to parking and as such the compliant had become in-fructuous. The covered parking space No.A-10 was allotted to the complainant in draw of lots on 25.8.2013 and thereafter they gave an application in writing on the same day to exchange their parking space No.A-10 with parking space No.-A7 allotted to one Shri Harvinder Singh and their request as such was accepted by them and the complainants accepted the allotment of covered car parking space No.A-7 to their satisfaction and gave in writing on 19.10.2013 that now they had no grievance regarding the allotment of parking issue. On 25.10.2013, the complainants again approached the OPs for allotment of additional Covered car Parking space against payment and their request as such was accepted and Parking Space No.A-8 was allotted to them. The complainants had got the Parking Space allotted in their favour fraudulently without disclosing the facts that they had already approached the Hon'ble Forum. Not only they had played fraud with the OPs but also had played a fraud with the Hon'ble Forum. Denying the allegations of deficiency in services or unfair trade practice on their part, the OPs had prayed that the complaint be dismissed with special.
4. The parties were allowed by the learned District Forum to lead their evidence.
5. In support of their allegations, the complainants had tendered F.A. No. 1413 of 2014 7 into evidence affidavit CA and affidavit of Sh.V.K.Goyal Architect(retd.) as Ex. CB, along with documents Ex.C-1 to C-11. On other hand the OPs had tendered into evidence affidavit of Mr. Navdeep Singh, Acting Estates Manager Ex.OPA, and documents Ex.OP-1 to Ex.OP-18.
6. After going through the allegations levelled in the complaint, written reply filed by the OPs, evidence and documents brought on the record, the learned District Forum dismissed the complaint of the complainant as referred above.
7. Aggrieved against the order passed by the Distt Forum, the appellant/ complainant has preferred the present appeal.
8. We have heard the learned counsel for both the sides and have carefully gone through the record of the case.
9. The appellants/complainants filed the Misc.application no. 2364 of 2014 regarding the appointment of local commission to ascertain the area of flat in question. We are of the opinion that there is no need to appoint the local commission at this stage as the parties have already placed on record the entire evidence regarding the area of flat. Moreover, the plea regarding the area has been taken in the grounds of appeal. To which area the complainant was entitled would be decided according to the terms and agreements and evidence of the parties. The Forum cannot be used to fetch evidences in favour of either party. Accordingly, Misc. application is hereby dismissed.
10. The complainants have alleged in the grounds of appeal that OPs agreed to provide them Super Area of 1740 sq. ft. whereas, they handed over the flat of 1488 sq.ft. to the complainants They provided them less area i.e. 252 sq.ft. than the agreed area. The covered area is the actual area of a house that is under the roof. Carpet Area is the actual usable area within an apartment minus wall thickness. Built up Area is the carpet area + area of walls and ducts+ area of terrace or carpet area + the F.A. No. 1413 of 2014 8 thickness of the outer wall and the balcony . Super Built up Area is the built up area plus area falling under common amenities namely stairs, lift, lobby, corridors, club etc. There is no evidence in the record that the Ops had agreed to provide the complainants the built up area of 1740 sq.ft . They entered into agreement ExC3 with Ops with regard to the flat no 404B having the super area of 1740 sq. ft. and the possession regarding the same was delivered to them. The complainants being educated person signed the documents like application dated 1.9.2013 for the allotment of flat after reading and understanding the contents thereof. They also executed the agreement containing the conditions and the possession letter Ex C5 where they undertook that all their claims were satisfied. During cross examination architect.V.K.Goyal admitted that he inspected only flat no. 110B in the garden heights. As such flat no 404B was not measured by the architect. Therfore, the plea regarding less area is an after thought. Moreover, the Architect has not added the common area in the built up area to take the Super Area. Therefore, without any cogent evidence on the record no findings can be recorded in favour of complainant then they were allotted less area.
11. The complainants further alleged regarding car parking. As per letter dated 25.8.2013 the complainants had admitted that they had been allotted parking through draw of lots and made a request for inter change of parking with Parking No.A-7 vide Ex.OP-9 and Ex.OP-11 dated 19.10.2013, in lieu of Parking No. A-10. The OPs accepted their request and inter changed the Covered Car Parking Space with Parking No.A-7. Further the complainants vide their letter dated 25.10.2013, requested the OPs for the allotment of additional Covered car Parking area in the Garden Heights and their request as such was accepted by the OPs and the complainants were allotted Additional space of Covered Parking No.A-8. F.A. No. 1413 of 2014 9 When the complainants are using the parking space then how they can make a request for refund of parking amount paid by them. There was no deficiency in services and unfair trade practice on the part of the OPs. The District Forum had rightly dismissed the complaint of the complainant with costs of Rs.10,000/- .There is no merit in the appeal and the same is dismissed.
12. The appellants/complainants had deposited an amount of Rs. 5,000/- with this Commission at the time of filing the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to respondents/OPs in equal shares by way of a crossed cheque/demand draft after the expiry of 45 days, from the dispatch of the order to the parties; subject to stay, if any, by the Higher Fora/Court.
13. The arguments in this appeal were heard on 01.06.2015 and the order was reserved. Now, the order be communicated to the parties as per rules.
14. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(Gurcharan Singh Saran)
Presiding Judicial Member
(Jasbir Singh Gill)
Member
July 13, 2015 (Mrs. Surinder Pal Kaur)
RK 2 Member
F.A. No. 1413 of 2014 10