DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA. Consumer Complaint No.403 of 24.05.2016 Date of Decision : 27.03.2017 Smt. Sheenu w/o Sh.Amit Kumar r/o Flat No.4, 3 Floor, Tower No.C Motia Marvel Homes,rd Ludhiana. .. Complainant Versus 1.M/s Marvel Homes Construction Pvt. Ltd., Barewal Road Backside Gurdev Hospital, Ludhiana through its Managing Director/Director etc. 2.Sh.Vinod Kumar s/o Bhim Sen, Director M/s Marvel Homes Construction Pvt. Ltd., Barewal Road Backside Gurdev Hospital, Ludhiana. ..Opposite parties (COMPLAINT U/S 12 OF THE CONSUMER PROTECTION ACT, 1986) QUORUM: SH.G.K.DHIR, PRESIDENT SH.PARAM JIT SINGH BEWLI, MEMBER COUNSEL FOR THE PARTIES: For Complainant : Sh.Indresh Kumar, Advocate For Ops : Sh.A.K.Shori, Advocate PER G.K DHIR, PRESIDENT
1. OP2 developed residential apartment under the name and style of Motia Marvel Homes on the land situate at Barewal Road Backside Gurdev Hospital, Ludhiana after getting approval and sanction of the plan from Municipal Corporation, Ludhiana. Brochures were floated for displaying the various amenities to be provided in the said residential apartments. Proposed sketch of the building as well as the structural sketch of the building depicted by OP2 in the said brochures. Through that brochures, it was promised and proposed that there would be 60% of space to enjoy the nature and 40% would be covered area with emerald swimming pool, unique club house and unbelievable campus and lush play ground for tiny tots (kids). Ample space for pranks of tiny tots along with billiard table, health club and multipurpose recreation hall with walled complex and round the clock security system was also to be provided. It was proposed that there would be anti skid tiles in the balconies and weather proofs on the wall will be done along with designer railing. Facility of independent car parking, high speed elevators of Kone or Otis company having capacity of 10 passengers,was also to be provided along with automatic rescue device system for use in power failure, so that the lift cannot be struck mid way. Building colour was purposed to be light and pleasing. Complainant by believing Ops, purchased flat No.4 on Third Floor Tower No.C in the said residential apartment scheme by spending a huge amount of Rs.52,00,000/- by signing agreement to sell dated 13.01.2015 and registered sale deed dated 19.3.2015. At that time, the complainant was not aware that the allurements made by the Ops will be on paper only. Ops represented that there will be 48 apartments in total in the said scheme. However, in reality, Ops constructed 48 residential apartment and 8 pent houses on the area of 48 apartments by violating the building norms of Municipal Corporation. Ops never got sanctioned the plan of those 8 pent houses approved from the Municipal Corporation. Amenities as mentioned in the brochures have not been provided. OP2 installed lifts of Schindler Company with capacity of eight persons with no automatic rescue device system, in the event of power failure. This is against the proposal of providing Otis and Kone lifts with capacity of 10 persons with automatic rescue system, in case of power failure system. 60% of the area has been constructed with concrete and small ground has been left by OP2 for garden with poor maintenance and patches of the ground with no greenery area provided. The area shown as garden area on the last page in the site plan has been made concrete area by OP2. Besides, till date, swimming pool has not been constructed. Utensils are kept for washing of the swimming pool. Despite temperature going upto 46 degree Celsius, facility of swimming pool has not been provided. Though, in the brochure, provisions were made for providing club house/health club, billiards table and multipurpose recreation hall, but those facilities have not been provided. Facility of fire safety arrangements depicted in the proposed plan of the brochure even has not been provided. Only box has been placed on the wall with no fire fighting gas or water. Only box and fire fighting cable is installed and no fire arrangement provided by OP2. Though, it was disclosed that there would be green trees and beautiful surroundings adjoining to the compounding wall, but no space has been left for planting trees. Even no paint work has been done and nor any skid free tiles have been put up. Rather, poor quality interlocked tiles are used by OP2. Though, allurement of providing separate parking space was given through brochure, but no parking lot has been put forth. Poor hygiene condition with incompletion of work and poor use of paint and wear and tear are the provided facilities against the terms and conditions of the brochure. Completion certificate of the apartment even has not been provided to the complainant. In view of selling of 8 pent houses without approval by the authorities, there is chaos in the surroundings of the apartments as well as in the draining system and parking lot. Due to the above pointed deficiencies, notice was got issued by the complainant through counsel Sh.Hardyal Inder Singh Grewal, Advocate on 29.4.2016 to Ops, but despite that promised facilities have not been provided and as such, it is claimed that the complainant has suffered unnecessary harassment and mental agony as well as tension, due to which, she is entitled for compensation of Rs.18 lac. Directions sought to Ops to provide the amenities detailed above and even the completion certificate obtained from the competent authority. Litigation expenses of Rs.33,000/- more claimed.
2. Ops were proceeded against ex-parte in this case because they did not appear despite service through proprietor Sh.Vinod Kumar.
3. Counsel for complainant closed the ex-parte evidence after tendering affidavits Ex.CA and Ex.CB along with documents Ex.C1 to Ex.C26. However, Mr.Rahul Kumar, Advocate filed power of attorney along with internet e-filing report on 22.8.2016 for showing that judgment reserved by the Honble State Consumer Disputes Redressal Commission, Punjab, Chandigarh vide order dated 18.8.2016. Copy of order dated 7.9.2016 passed by the Honble State Consumer Disputes Redressal Commission, Punjab, Chandigarh in First Appeal No.619 of 2016 titled as M/s Marvel Homes Construction Pvt. Ltd vs. Smt. Sheenu was produced for showing that order dated 15.7.2016 passed by this Forum for proceeding Ops ex-parte was upheld. Ex-parte proceedings against Ops were not set aside. Later on counsel for complainant claimed that chances of compromise are there, but that was not arrived at. Written arguments were submitted by the complainant. On 1.11.2016, Sh.A.K.Shori, Advocate appeared on behalf of Ops for claiming that Revision has been preferred before the Honble National Consumer Disputes Redressal Commission, New Delhi against the order of Honble State Consumer Disputes Redressal Commission, Punjab, Chandigarh, vide which ex-parte proceedings have not been set aside.
4. Later on an application for adjournment and permitting Ops to file the written statement was filed, but that application was disposed of vide order dated 16.1.2017 passed by this Forum by holding that in view of the directions issued by the Honble National Consumer Disputes Redressal Commission, New Delhi through order dated 16.12.2016 passed in Revision Petition No.2800 of 2016 titled as M/s Marvel Homes Construction Pvt. Ltd. and another vs. Smt. Sheenu, Ops cannot be permitted to file the written statement, but they can join the proceedings at the stage where they were pending at the time of appearance of Ops. As the complainant has already closed the evidence and as such, Ops were permitted to join the proceedings from that stage onwards. Ops were given right to address the arguments and thereafter, oral arguments of counsel for parties heard. Records gone through minutely. Ops placed on record certain documents in the course of oral arguments of counsel for Ops.
5. It is vehemently contended by counsel for complainant that affidavits Ex.CA and Ex.CB of complainant and her husband along with produced voucher Ex.C1 establishes that facility of 60% space to be kept open for enjoying the nature, inhale the bounty of natural surroundings, dip in serenity of emerald swimming pool socialized in the warmth and of unique club use and unbelievable campus was to be provided. However, these facilities have not been provided and as such, there is deficiency in service on the part of OPs. In the brochure providing of above referred facilities or of unique club or of 60% open area are certainly mentioned. In that brochure, it was also mentioned that 24 hours treated water supply facility will be provided and there will be 100% rain harvesting. Besides, facility of independent car parking, high speed elevators and power backup as well as of underground water sewerage system was to be provided. Even if after going through these allurements of brochure, complainant paid Rs.52 lac for purchase of flat in question, but despite that she also executed agreement to sell Ex.C1 dated 19.1.2015 and got the sale deed Ex.C3 registered from Ops by appearance before the Sub Registrar on 19.3.2015. In view of execution of agreement of sale at the time of paying of price, certainly the complainant got herself bound by the terms and conditions of the agreement of sale. The terms and conditions laid in the brochure as such ceased to have effect because as and when agreement of sale executed between the parties, then parties are bound by the terms and conditions of the agreement. So, pointed out deficiencies has to be adjudged in the light of the terms and conditions of the agreement of sale Ex.C2 or that of registered sale deed Ex.C3.
6. After going through clause no.5 of sale agreement Ex.C2, it is made out that super area
i.e. covered area, terrace area plus proportionate area covered by the lifts, shafts, machine rooms and mumties, air handling unit room on floors, fire control security rooms, corridors etc to be part of common area. This common area to be included in the computation of super area and the same not to give any right, title or interest therein to the apartment allottee. However, the apartment allottee will have right to use the common facilities. It is specifically made clear through clause 5 of Ex.C2 that apartment allottee will have no right to claim common facilities, which has not been agreed to be transferred by this scheme. So, in view of this, it is obvious that complainant to avail right of common facilities only as per conditions of agreement Ex.C2. There is nothing in Ex.C2 to show that lifts of Otis and Kone company with capacity of 10 persons with automatic rescue system in case of power failure to be provided. When specification of the model of lifts to be installed not given in Ex.C2 or Ex.C3, then certainly claim of the complainant not sustainable that she was entitled to avail the facilities of lifts of Otis and Kone Company alone. As the installation of Schindler Company lifts has been specifically admitted in para no.6 of affidavit of complainant and as such, there is no deficiency in service in this respect. Counsel for complainant unable to point out any clause of agreement of Ex.C2 or sale deed Ex.C3 for proving that lifts of Otis and Kone alone to be installed with automatic rescue system. So, pointed out deficiency in service in this respect virtually do not exist.
7. Second deficiency pointed out in para no.6(B) of the complaint and in the corresponding paras of affidavits are that 60% area is under concrete, despite the fact that 60% space was to be kept for enjoying the nature and inhale the bounty of natural surroundings for the tiny tots. Even if the photographs in that respect may have been produced on record, but despite that after going through agreement of sale Ex.C2 or sale deed Ex.C3, it is not at all made out that OPs agreed for keeping 60% of area under greenery. It is not the terms of brochure or the site plan annexed therewith that is to prevail, but it is the term of written agreement or the sale deed that is to prevail.
8. After going through clause 11 of ex.c2, it is made out that except for the apartment agreed to be sold and all other rights attached to the entire common areas in the building in question, shall continue to rest absolutely in the name of seller i.e. OPs, unless and until the same and any part thereof is specifically transferred in any manner to any other individual, society, seller or any other organization by whatever permit may be called. So in view of clause 11of Ex.C2, it is obvious that OPs being seller got power of transferring in any manner to any other individual society or organization parts of the common area. So, if 8 pent houses after construction in common area sold by the Ops, then the same is in consonance with the terms of clause 11 of Ex.C2.
9. As per clause 12 of ex.c2, the responsibility of the seller for the maintenance of the building, infrastructure and other services ceases from the date of possession of the apartment taken by the purchaser. However, appropriate action will be taken by the seller to from or appoint a company/authority to take care of the maintenance of the complex as deemed fit by the OPs. As per clause 12 of ex.c2 itself, company/authority to provide facilities like that of water supply, sewerage disposal, working of lifts, 100% power backup, horticulture, sanitation cleanliness, security etc.,for the proper up keep of the complex. So, Ops undertook liability of providing these facilities only through clause no.12 and they are bound to provide these facilities.
10. Though, it is claimed that concrete cover area is more than those of specifications given in the brochure, but the complainant has not lead any evidence to prove as to what is the total area of the premises, on which, housing complex/flats built or as to what is the area under coverage or as to what is the area left for green belt/parks or as to what is the area left for swimming pool or like purposes. Only on proof regarding facts of the total area, covered area, area under the forest etc, it could have been ascertained as to what deficiencies are there in the matter of providing areas in contravention of specifications given in the brochure. Even no Architect or surveyor or expert examined to prove about contravention of specifications referred above.
11. As per clause 21 of Ex.C2, purchaser i.e. the complainant only authorized to use the common parking area for two cars as well as other common areas and facilities of the complex. Vide clause 29 of ex.c2, OPs undertook liability of maintenance and upkeep of the common area and facilities until these are handed over to some body corporate or other agency nominated by the Ops. Further as per clause 29 of Ex.C2 itself the complainant/allottee agrees and consents to the said arrangements to be made by OP company. However, as per clause 29 itself, these maintenance, upkeep, repairs, security etc, of the building are the facilities which are to be provided on payment of maintenance charges to be determined by the Ops or its nominated felllow by keeping in view the maintenance cost. Delay in non-payment of maintenance charges will make allottee(complainant) liable for interest @2% per month. Further as per clause 29 of ex.c2, non-payment of any of the charges within the time specified to disentitle the apartment allottee to enjoyment of the common services including lifts, electricity, water etc. It is not the case of complainant that she has been paying the maintenance charges to OP company regularly and as such, in the absence of such pleadings, it is obvious that OP company can disentitle the complainant from enjoyment of common services including lifts, electricity and water etc. As these facilities to be provided on payment of maintenance charges and as such, the complainant cannot complain of deficient services in this respect unless she establishes that she had been paying the maintenance charges regularly. In view of non impleadment of paying the maintenance charges, it is obvious that complainant unable to prove that deficiency in service in matter of providing of water services, security system etc is due to fault of OPs.
12. After going through sale deed Ex.C3 and also agreement of sale Ex.C2, it is made out that requisite sanction for construction has already been obtained by the OP company from the Municipal Corporation and construction raised as per by-laws. Besides, in sale deed Ex.C3 itself, it is mentioned that the complainant before getting the possession of the flat in question duly inspected the same and found the carried out works to be done properly. After satisfying that carried out works, the complainant got possession is also a recital in sale deed Ex.C3. So, keeping in view the terms of Ex.C2 and Ex.C3 together, it is obvious that the complainant after getting possession of the flat in question, exonerated OPs from responsibility of maintaining the building, infrastructure and other services as per clause 12 of ex.c2. So, the complainant now estopped from claiming that interlocking tiles are of not proper quality.
13. No provision is made through agreement of sale Ex.C2 or of sale deed Ex.C3 for providing facilities of billiard table and multipurpose recreation hall with walled complex or of swimming pool. Rather, after going through the terms of Ex.C2 and Ex.C3, it is made out that if at all such facilities to be availed, then complainant had to contribute her share of maintenance charges. Even for availing facility of sewerage connection in flat in question, liability of paying the sewerage charges became of the complainant as per the term of sale deed Ex.C3. Through Ex.C3, it was specifically disclosed to the complainant that parking of the car facility will be available in the basement. Question of providing deficient service arises only if the complainant able to prove that she had performed her part of contract by paying the maintenance charges for availing facility of swimming pool or of club or like that, but those charges not shown to be paid regularly despite undertaking given through Ex.C2 and Ex.C3 and as such, the complainant cannot claim providing of deficient service at this stage.
14. It is vehemently contend by Sh.A.K.Shori, Advocate for OPs that in case the complainant feels being cheated in purchase of the flat in question, then OPs are ready and willing to return the whole amount with rate of interest @2% per month i.e. 24% per annum. However, that offer not acceptable to the complainant or her counsel.
15. Counsel for Ops vehemently contends that in case really deficient service would have been provided, then husband of the complainant Sh.Amit Kumar would not have entered into an agreement of sale for purchase of another flat in the same premises after agreeing to pay Rs.58 lac. Copy of agreement of sale dated 7.6.2016 in this respect has been produced on record. However, counsel for complainant vehemently contends that this agreement of sale cannot be taken into consideration because the same is not part of the evidence. That submission of counsel for complainant has no force because OPs have been given liberty to address arguments for presenting their point of view. Photo state copy of agreement of sale produced by counsel for OPs cannot be ignored and as such, it is obvious that in fact the pointed out deficiency may have been projected just for getting undue benefit of claiming compensation. In such circumstances, submissions advanced by Sh.A.K.Shori, Advocate for OPs has force that completion of lifts/elevators work was done in 2013. It is on account of this that complainant herself admitted in the complaint as if elevators have been installed. It is also contended by Sh.A.K.Shori, Advocate representing OPs that annual maintenance contract of lifts of Otis company was not possible and that is why lifts of Schindler company were got installed. In the absence of specifications of installing lifts/elevators of Otis or Kone company, certainly, Ops were at liberty to provide lifts, for which, maintenance contract could have been arrived at, so that there may not be deficiency in service in providing that facility.
16. It is also contended by Sh.Indresh Kumar, Advocate representing the complainant that completion certificate of the building has not been provided till date, but there is no denial of the fact that the building has been completed and that to after obtaining sanction of the site plan from the Municipal Corporation and that is why stipulation in that respect recorded in Ex.C2 and Ex.C3 each. As the said certificate of completion to be obtained by the builder and he is shown to have obtained the same and as such, there is no deficiency in service in this respect.
17. In photograph Ex.C11 only boxes are visible and as such, it is contended by counsel for complainant that no fire safety system virtually has been installed. No report of expert got produced for proving the deficiency of non-installation of the fire system and as such, photograph
i.e.depiction Ex.C11 alone cannot be formed the basis for holding such deficiency. If the illegally built 8 pent houses sold by reducing the area from 1700 Sq. feet to 1500 Sq. feet, then husband of the complainant would not have entered into an agreement dated 7.6.2016 with Ops for purchase of another flat of worth of Rs.58 lac, but he did so and as such certainly submissions advanced by counsel for OPs has force that this complaint has been filed for extraneous consideration for getting undue advantage.
18. Therefore, as a sequel of the above discussion, complaint dismissed without any order as to costs. Copies of order be supplied to the parties free of costs as per rules.
19. File be indexed and consigned to record room. (Param Jit Singh Bewli) (G.K.Dhir) Member President Announced in Open Forum Dated:27.03.2017 Gurpreet Sharma.