Trishla Builders vs Sushila Sharma

Revision Petition Nos.950 & 951 of 2014 have been filed by the petitioner Trishala Builders against the order dated 06.11.2013 of the State Consumer Disputes Redressal Commission, Punjab, (in short 'the Sate Commission') passed in appeal No.523 of 2011 & 484 of 2011 and revision petition No.1893 of 2014 has been filed by the complainant Smt. Sushila Sharma against the same order dated 06.11.2013 of the State Commission, passed in Appeal No.523 of 2011.  As these are cross-appeals, the parties shall be referred to as the complainant and the opposite party.

Brief facts of the case are that the complainant purchased the apartment no.263 on First Floor in Tower Hanogi Complex at "Trishla Plus Homes" at Peer Mushalla Tehsil Dera Bassi, District Mohali from the opposite party for an amount of Rs.34,54,500/- vide allotment letter dated 18.12.2007. Agreement was also executed between the parties on 18.12.2007. The apartment was of Gold Premium category. The complainant paid Rs.36,21,300/- to the opposite party as price of the apartment including an amount of Rs.1,18,000/- for additional items like kitchen partition with designer glass and Wall stone tiles in the drawing room and Rs.48,800/- as maintenance charges as well as refundable security etc. The opposite party had promised that very good material will be used for the construction of the apartment. The possession of the apartment was offered by the opposite party and the complainant occupied the apartment on 31.08.2009 but she was shocked to find that the apartment was incomplete in all respects and there were many lapses and deficiencies in the construction as well as in the material used by the opposite party. The apartment was not worth living. The complainant brought the lapses in the notice of the opposite party, who assured for the removal of all the defects without any delay. But the opposite party did not remove the lapses as well as the defects as per its assurance and as per the agreement. The opposite party instead of removing the defects deliberately disconnected the electricity supplies connection of the apartment on 6.1.2010 when the complainant had reached the apartment from Shimla with her family members. The opposite party was supposed to maintain regular supply of electricity and water to the flat as per agreement. The complainant made an application on 7.1.2010 to the Police under the compelling circumstances. The complainant then First Appeal no.523 of 2011 5approached the S.S.P. Mohali and made an application dated 8.1.2010 to him and the copy of the same was also sent to the opposite party. To counter the letter dated 8.1.2010, the opposite party sent a back dated letter dated 5.1.2010 to the complainant vide which a demand of Rs.1,50,779/- on account of maintenance charges, security for maintenance and charges for repainting of external walls was raised. The opposite party had not raised such demand from any other allottee. The complaint was filed by the appellant alleging the above defects in the apartment as well as deficiency in service and unfair trade practice on the part of the respondent with the prayer that the respondent may be directed to pay Rs.6,00,000/- for the repair/removal of the defects, Rs.5,00,000/- as compensation for mental agony and harassment alongwith Rs.21,000/- as litigation expenses.

Upon notice reply was filed by the respondent. It was stated by the respondent that the appellant had purchased a normal apartment and not gold premium apartment. Extra amount was charged from the appellant as she sought some additional features and materials for the apartment over and above the agreement. The entire work was done to the satisfaction of the appellant and as per the terms and conditions of the agreement. The appellant had occupied the apartment in August, 2009 and at that time the apartment was complete in all respect. It was further pleaded by the respondent that it had constructed 312 apartments out of which 240 apartments have already been sold and occupied by the purchasers. No First Appeal no.523 of 2011 6other customer has made any complaint against the construction as well as facilities provided by the respondent except the appellant.  Both the parties were given opportunity to produce evidence in support of their contentions.

The District Consumer Disputes Redressal Forum, SAS Nagar, Mohali, (in short 'the District Forum') vide its order dated 16.02.2011 as under:-

"23.  For the reasons recorded above, the complaint is partly allowed.  The demand of Rs.1,50,779/- made by the OP from the complainant in respect of maintenance charges, security charges and repainting of external façade vide letter Ex.C-11 amounts to deficiency in service on its part and is set aside.  The OP is directed to pay to the complainant an amount of Rs.1,02,500/- (Rupees one lac two thousand five hundred only) for enabling her to effect repairs in the flat so as to remove the defects therein as found above.  If this amount is not paid within one month from the date of receipt of a certified copy of this order, it shall carry interest @9& per annum from the date of institution of this complaint i.e. 04.02.2010 till the date of actual payment.  The OP should also pay to the complainant litigation expenses to the tune of Rs.5,000/- and compensation for harassment to the tune of Rs.10,000/-."

Aggrieved, the opposite party/petitioner preferred appeal before the State Commission. The State Commission dismissed the appeal No.484 of 2011 filed by the opposite party vide impugned order.

Hence the present revision petitions No.950-951 of 2014 filed by the opposite party and RP No.1893 of 2014 by the complainant.

Heard the learned counsel for the parties and perused the record. For the sake of convenience the parties shall be referred to as complainant and the opposite party.

Learned counsel for the opposite party stated that the District Forum had appointed Local Commissioner to give report on the shortcomings and the Local Commissioner Mr. Kulwinder Singh, Advocate gave his report on 09.08.2010.  The only defect has been shown in respect of leakage of water from inside of some of the walls.  Moisture was observed by the Local Commissioner on some of the walls and the reason assigned by the Local Commissioner was that there was leakage inside the wall.  The Local Commissioner has not given any estimate for repair of the defect of leakage and moisture.  The complainant had got a report from some other expert Mr. R.D.Sharma, wherein an estimate of Rs.6,00,000/- was given for repairs of the defects.  The learned counsel pointed that the Local Commissioner had inspected the site in presence of both the parties. The report of Mr. R.D.Sharma cannot be accepted as no permission was granted by the District Forum to the complainant to get an expert report from outside.  Moreover, the District Forum, after considering the defects and on the basis of other evidence available on the record, ordered the opposite party to pay Rs.1,02,500/- only.  The State Commission, on the other hand, has relied on the report of Mr. R.D.Sharma, who was appointed by the complainant. The State Commission accepted the repair charges as 50% of the estimate given by Mr. R.D.Sharma, without any basis.

Learned counsel for the opposite party further stated that as per Clause 3(b) of the builder -buyer agreement there is a provision for payment of two years maintenance charges to be paid by the allottee in advance.  Learned counsel for the opposite party further stated that a demand of Rs.1,50,779/- was sent to the complainant vide letter dated 05.01.2010 as per different provisions of the builder-buyer  agreement.  The details of the same were as follows:-

i) As per clause 3(a) of buyers agreement maintenance charges @Rs.1/- per square feet of super area per month for 24 months:

I*1831* 24 months

Rs.43,944/-

ii) As per clause 3(b) of Buyers agreement security for maintenance @Rs.60/- per square feet of super area

60* 1831

Rs.1,09,860/-

iii)  As per clause 3(b) charges for repainting of external Faces @25/- per square feet of super area

25*1831

Rs.45,775/-

Total Amount Payable

Rs.1,99,579/-

Deduct amount paid by your goods self towards Maintenance & Security

(-) Rs.48,800/-

Net balance amount due

Rs.1,50,779/-

The District Forum has set aside this demand without any reason.  The State Commission has also agreed with this decision of the District Forum.  The learned counsel submitted that these amounts are due on the complainant on the basis of the provisions of builder-buyer agreement and the complainant is required to pay the same.

On the other hand, learned counsel for the complainant stated that the complainant had to take the service of expert Mr. R.D.Sharma for assessing the repair cost of the flat when the opposite party did not come forward to repair the same inspite of various assurances given by the opposite party.  The expert Mr. R.D.Sharma, Chartered Accountant, has rightly assessed the cost of repairs.  Export/Local Commissioner appointed by the District Forum, Mr. Kulwinder Singh, Advocate has not given any estimate for repair of the defects mentioned in his report. Therefore, the State Commission has granted 50% of the estimate given by Mr. R.D.Sharma.  In fact, the District Forum had granted very meagre amount for such repairs and therefore, the complainant had to file the appeal before the State Commission, which was partly accepted.

It was further stated by the learned counsel for the complainant that the project was not complete and therefore, no question for repainting of outer wall should have arisen. The demand of Rs.1,50,779/- was only sent to harass the complainant.  When two years' maintenance charges were being taken as advance and the complainant had already paid Rs.48,800/- for the same, there cannot be any other security for the maintenance and the same was demanded illegally from the complainant.  The learned counsel further stated that this type of demand was not sent to any other allottee and it was only sent to the complainant to harass her.

I have given a thoughtful consideration to the arguments advanced by the learned counsel for the parties and have examined the material on record.

First of all, it is seen that there is a delay of 25 days reported by the Registry in filing the revision petition No.1893 of 2014 by the complainant.  As the delay is only of 25 days and cross revision petition is also being considered, the delay is condoned on the grounds mentioned in the application for condonation of delay.

Now coming to the demand of Rs.1,50,779/- sent by the opposite party to the complainant vide letter dated 05.01.2010, it is seen that the complainant had already paid Rs.48,800/- for maintenance charges. This demand consists of three items.  First being two years maintenance charges of Rs.43,944/- and the second being security for maintenance for Rs.1,09,860/-.  The third item is for repainting of outer wall for which an amount of Rs.45,775/- is  demanded.  It seems that the complainant has already paid two years maintenance charges. So far as charges for security of maintenance is concerned, when two years maintenance charges are taken in advance, there seems to be no justification for taking further amount for security of maintenance and this seems to be only unfair trade practice.  Similarly charges are being asked for repainting of the outer walls. This may not have been required at that time as allegedly this demand was sent only to the complainant. The opposite party has not clarified whether this demand was raised from all the allottees and what was the time gap for repainting of the outer walls.  In these circumstances, both the fora below have given concurrent finding and have set aside the demand raised by the opposite party. Against the concurrent finding of fact, this Commission has limited jurisdiction in the revision petition.  The facts cannot be reassessed at the stage of revision petition by this Commission against the concurrent finding given by both the fora below as held by Hon'ble Supreme Court in Mrs. Rubi (Chandra) Dutta vs. United India Insurance Company, 2011 (3) Scale 654, wherein the following has been observed:-

"Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view that what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous)  interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken, by setting aside the concurrent finding of two fora."

Accordingly, this Commission is not going to revisit the issue of demand raised by the opposite party as the same has been dismissed by both the fora below and no new facts have been brought to the notice of this Commission.

Now coming to the question of shortcomings in the flat, it is clear that the report of Mr. R.D.Sharma, the expert appointed by the complainant as well as the report of the Local Commissioner appointed by the District Forum have confirmed that there are defects in the flat.  Even if the report of Mr. R.D.Sharma is not considered, the report of the Local Commissioner appointed by the District Forum is very specific and records the fact that the walls were found to be wet with moisture even in the summer months.  The Local Commissioner has concluded that there was moisture in all walls due to leakage inside the walls from the water carrying pipes. This is a major defect and the opposite party has not been able to repair the same inspite of assurances given to the complainant.  Thus, clearly the opposite party is deficient in service.  The State Commission has not examined the deficiencies in the flat in details and has on lump sum basis granted 50% of the amount assessed for repairs by Mr. R.D.Sharma as expert appointed by the complainant. As no basis has been given by the State Commission for awarding this amount, the order of the State Commission cannot be sustained. On the other hand, the order of the District Forum is based on assessment of different deficiencies found in the flat and on this basis has assessed the damages.  Consequently, the order dated 16.02.2011 of the District Forum is sustainable.  However, the compensation awarded by the District Forum seems to be meagre in the circumstances of the case.  The same is enhanced to Rs.50,000/- from Rs.10,000/- awarded by the District Forum.

Based on the above discussion, the order of the State Commission dated 06.11.2013 is set aside and order of the District Forum dated 16.02.2011 is upheld in totality except that the compensation payable to the complainant is increased from Rs.10,000/- to Rs.50,000/-. Just by way of clarification, it is clarified that the opposite party will be liable to pay interest @9% p.a. on the amount of Rs.1,02,500/- from the institution of the complaint i.e. 04.02.2010. No order as to costs for these revisions petitions.