1. Heard Mr. Santosh Krishnan, Advocate, for the complainants and Mr. Manish Paul, Advocate, for the opposite party.
2. 8 Sets of home buyers have filed above complaint for directing the opposite party to (i) deliver possession of the mini township project “Larica Green Hamlet”, complete in all respect; as per specifications, advertised in Brochure and mentioned in agreements of the home buyers; (ii) pay compensation to all the home buyers in the form of interest @18% per annum on their deposit, for the delayed period of possession; (iii) pay compensation @Rs.1/- per sq.ft. per month of the entire constructed area for a period of two years into maintenance escrow fund, for upkeep of the project; (iv) carryout maintenance and upkeep activities of the project in terms of the agreement; (v) pay costs of the litigation; and (vi) any other relief which is deemed fit and proper in the facts and circumstances of the case. This Commission, vide order dated 04.01.2018, granted permission to file the complaint in representative capacity under Section 12(1)(c) of the Consumer Protection Act, 1986 and the notices were published in newspapers.
3. The complainants stated that Larica Estates Limited (the opposite party) was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project and selling its unit to the prospective buyers. The opposite party launched a mini township project, consisting group housing complex, commercial complex, bunglow, cottage and row houses etc., over an area of 68 bigha 18 lachha land, in the name of “Larica Green Hamlet” at village Bongara, mouza Chayani near Mirza, district Kamrup, Assam, at a distance of 30 K.M. from Guwahati, in the year 2010 and made wide publicity of its facilities and amenities through electronic and print media. The opposite party represented that first 100 allottees would get free membership of the club worth Rs.one lac. Induced with the rosy pictures of the project and believing upon the representations and promises of the opposite party, above 8 complainants and other home buyers entered into an agreement for sale on different dates in between 2011 to 2014, for purchasing their individual unit. The agreement provides payment plan as “construction link payment plan”, in which, total consideration was payable in 10 instalments. As per demand, the home buyers including the complainants deposited the instalments in time but possession was delayed to them from one year to four years. Clause-14 of the agreement provides 24 months period from the date of the agreement, for handing over possession. Under clause-13 of the agreement, the opposite party undertook to develop the amenities, facilities and common part/area. Under clause-20(a), the opposite party undertook to indemnify the customers for all losses, damages, costs etc. due to non-fulfilment of its obligation. In the brochure, the opposite party promised as follows:- (i) Land fully developed with independent boundary, gates etc. (ii) over 70% open area green. (iii) Each home with its own garden and car park. (iv) Exclusive shopping mall. (v) Departmental store. (vi) 24 hours drinking water. (vii) Round the clock security. (viii) ATM facility. (ix) Doorstep maintenance. (x) Club house. (xi) Car parking for guest. (xii) Club consisting of gym, swimming pool, spa, tennis courts, restaurant, cafeteria. The opposite party advertised in newspaper on 10.04.2010, that (a) Fully developed land with row house/bunglow. (b) No loss of common space. (c) Each plot with own garden. (d) Compound wall and independent gate. (e) Private terrace. (f) Personal garden. The opposite party has committed following deficiency in service:- (i) Delivery of possession to the home buyers of their unit has been delayed for a period of one year to four year but the opposite party has not provided any compensation for delay. (ii) The opposite party started construction of boundary wall 6 years ago but it is still incomplete and at some places, its height is less than five feet and at some places only fencing was there. (iii) The opposite party, vide letter dated 20.10.2011, informed the home buyers that ASEB Ltd. has agreed to provide necessary power to the project, on set up of sub-station/transformers. The opposite party charged Rs.40/- per sq.ft., for installation of sub-station and development of external electrification infrastructure. But the opposite party installed only one transformer, which is insufficient for the load of the town. Due to which, there is incessant fluctuations in power supply, making it unstable and unsafe for all electric equipment. Street light in the lanes are tied precariously from short bamboo poles and flexible wires going through bunglow to bunglow. Wiring system laid out by the opposite party is unprofessional and hazardous. (iv) The construction of road was started six years back but is still incomplete. Thickness of concrete block and the sub-base is inadequate. (v) Drains are uncovered and not connected with sewage pipeline. The opposite party has not installed sewage treatment plant. Open drains used to be blocked and over flow at the places. (vi) The opposite party has not constructed overhead tank for water supply. The peoples are residing in about 350 houses and water supply is highly inadequate. (vii) The opposite party has not developed green area, garden and landscaping. The opposite party is constructing bunglow at the places which were shown as open area/garden in the building plan and thereby reducing green area. (viii) Shopping mall, Departmental store and ATM have not been constructed due to which, the residents have to go 3 km away for purchasing daily use things. (ix) The residents are facing difficulty for disposal of garbage etc. as the opposite party has not made any arrangement for it. (x) Club and club related facilities have not been developed till today. (xi) Residents are facing with the problems of the beams and columns are not in plumb, cracks in walls, walls are uneven, defective plumbing and defects in door and windows, due to defective and sub-standard construction. The home buyers made several complaints individually and collectively in respect of above deficiencies and various meeting were held with the officials of the opposite party in respect of these deficiencies but it were not been made good. Then this complaint was filed on 27.03.2017, alleging deficiency in service and unfair trade practice.
4. The opposite party filed its written reply on 10.10.2017 and contested the complaint. The opposite party stated that they started the project in the year 2010 with target to complete it till 2016 as per specifications. But for the force majeure reasons i.e. non-availability of sand, quartz stone and non-sanction of electricity supply for a long time, Assam being frontier state, movement of vehicles with construction material used to stopped frequently and due to not being a good approach road up to site, the construction was delayed. Apurba K. Baruah (complainant-1) started negative publicity in respect of the project due to which sale of the units were badly affected and some of the home buyers cancelled the agreement and took refund of their money. In order to gain confidence of the home buyers, the opposite party published a message in newspapers on 04.10.2013, that the opposite party was making all endeavour to complete the project as early as possible, if any home buyer was not satisfied with the efforts of the opposite party, he could cancel his agreement and take back his money. The home buyers, who entered into agreement for sale, delayed payment of the instalments but the opposite party did not charge any interest for delayed period. The opposite party delivered possession to the complainants, even without clearing their dues. Allegations that the construction was of sub-standard or defective has been denied. After inspection of the unit, the home buyers took possession without any objection. After taking possession, now false allegations are made that the constructions are defective and of sub-standard. As payment of instalment was delayed and the opposite party did not charge any interest for the delayed period, the home buyers are not entitled for any compensation for delay in possession. Otherwise also there is no clause for payment of delayed compensation in the agreement. The opposite party constructed boundary wall and developed road and drainage of entire project land. The opposite party has constructed septic tank for individual home. The project being at a distance of 3 KM from Guwahati International Airport as such Airport Authority are not granting permission for construction of overhead tank. However, water pipeline has been laid throughout the colony and there is regular water supply. Although, the opposite party has allocated land for installation of electricity sub-station but AESB is not installing electricity sub-station and as required the opposite party has deposited expenses for installation of transformer, which has been installed. It has been denied that there had been over load on the transformer. Electrification infrastructure and street light have been developed throughout the town. The home buyers have applied for installation of their own meter but it is delayed due to electricity department. It is denied that bamboo pole has been installed anywhere. The opposite party has constructed shopping complex, which is a two storey building in an area of 5000 sq.ft. and gave an advertisement for opening shop in it for which no rent would be charged for first one year but till today nobody had turned up for opening shop. The opposite party has constructed club house and developed garden, green area, play area and landscape as per specification in the layout. It has been denied that any green area was converted for raising colony. The complainants have not deposited membership charges for the club and not paying maintenance charges for common facilities. If some resident wants to pay membership or maintenance charges, the group of the complainants used to insult him. If there will be sufficient numbers of residents, then the bank will install ATM. The opposite party has not committed any deficiency in service or unfair trade practice. The complaint has been filed on various false and frivolous allegations and is liable to be dismissed.
5. The complainants filed Rejoinder Reply, Affidavit of Evidence of all the complainants and documentary evidence. The opposite party filed Affidavit of Evidence of Satish Lakhotia and documentary evidence. Both the parties have filed their written submissions.
6. We have considered the arguments of the parties and examined the record. The complainants have filed Agreement for Sale of Apurba Kumar Baruah dated 26.08.2011, in which total consideration of Rs.3673558/- is mentioned. The opposite party has filed Statement of Account of Apurba Kumar Baruah showing that he had paid Rs.20000/- on 06.08.2011, Rs.80000/- on 06.08.2011, Rs.357356/- on 28.10.2011, Rs.1072068/- on 12.03.2012, Rs.605092/- 18.10.2012, Rs.768565/- on 06.03.2014 and Rs.412665/- on 21.05.2015 and took possession on that day. Rs.357812 was still due. The opposite party has stated that due to force majeure reasons i.e. non-availability of sand, quartz stone and non-sanction of electricity supply for a long time, movement of vehicles with construction material used to stop and due to not being a good approach road up to site, the construction was delayed. The opposite party did not charge any interest for delayed payment. Payments of instalments of all the complainants have been postponed, without charging interest and they are still in dues although they have taken possession. These allegations appear to be correct from statement of account. If the complainants have not made full payment within two years of the agreement nor they were charged interest for delayed period then there is no justification for them to ask for compensation for delay in handing over possession.
7. Clause-18 (h), (q) and Clause-20 (a) (b) of the agreement are quoted below:
“Clause 18 (h) From the date of delivery of possession of the said Banglow the Purchaser (s) shall pay his/her/their proportionate share towards all outgoings in respect of the said Banglow as well as premises and shall also pay for the proportionate share of monthly maintenance charges of the common parts, the common amenities, the common easements etc. and shall also pay the proportionate share of any other taxes or outgoing to be levied in respect of the said premises separately, more fully mentioned and described in the Fourth Schedule hereunder written;
(q) The purchaser shall pay to the Developer or its nominated person/company the service and maintenance charges at the rate of Re.1/- Per Square feet (as per constructed area) month by month from the date of taking over possession of the Banglow hereby agreed to be conveyed and or from the date of intimation of completion whichever is earlier and the same shall be increased from time to time according to Market trend and the developer shall have the right engage a company for maintenance of the total property.”
“Clause 20. That the Developer shall furnish copies of all documents or title of the scheduled premises, if necessary and further that the Developer or their successors-in-office and assigns shall produce the Original of all such documents at the requisition and cost of the Purchaser (s) in any Court or before any statutory body or bodies or otherwise as and when reasonably required.
(a) That the Developer and the Purchaser (s) shall indemnify and keep indemnified saved and harmless against each other for all losses, damages, costs, claims, demands, actions and proceedings due to non/fulfilment of the obligations contained herein.
(b) That the Purchaser (s) shall at his/her own costs keep the scheduled Banglow and sewers, drains, pipes concealed wire, entrance exclusively serving the scheduled Banglow in good and substantial repair and conditions so as to support shelter and protect the other parts of the building and carry out all words of repair/maintenances as may be required and while using and enjoying the same the Purchaser shall be abide by all laws, bye-laws, regulations and restrictions of the State and Central Government and other statutory body and/or authority and be answerable and responsible for violation of any of the conditions or rules or bye/laws and observe and perform all terms and conditions contained herein.”
8. The home buyers are under obligation to pay maintenance charges of common part, the common amenities and facilities. There is no allegation that any of the home buyer has paid these charges. No direction can be given to the opposite party to pay maintenance charges for two years, contrary to the terms of the agreement. Clause-20 is not in respect of maintenance charges.
9. The opposite party has stated that they had constructed boundary wall and developed road and drainage of entire project land, They have constructed septic tank for individual home. Electrification infrastructure and street light have been developed throughout the town. Although, the opposite party has allocated land for installation of electricity sub-station but AESB is not installing electricity sub-station and as required the opposite party has deposited expenses for installation of transformer, which has been installed. They are providing regular water supply as Airport Authority did not sanction for construction of overhead tank, it could not be constructed. They have constructed shopping complex, which is a two storey building in an area of 5000 sq.ft. and gave an advertisement for opening shop in it for which no rent would be charged for first one year but till today nobody had turned up for opening shop. The opposite party has constructed club house and developed garden, green area, play area and landscape as per specification in the layout. It has been denied that any green area was converted for raising colony. No bank is ready to install ATM as number of resident at present is not according to the norms of the bank. The opposite party has also filed photographs to prove it. The complainants did not ask to issue a local commission to prove that the allegations and photograph are incorrect. Similarly, the complainants have not adduced any evidence to prove that the construction was of inferior quality. There is nothing on record that at the time of taking possession, the complainants raised any protest in respect of sub-standard construction.
The Office has submitted report that the complaint was filed with delay of 1255 days. In the present case, the opposite party offered possession to the complainants on 21.05.2015 and the complaint was filed on 27.03.2017 which is within two years of taking possession, therefore, the report of delay is not correct. It is overruled.
ORDER
In view of the aforesaid discussions, the complaint is dismissed.
