R. Ranjit, Member
The 1st complainant has filed this appeal aggrieved by the Order dated 02.04.2016 in C.C No. 586/2012 on the file of Consumer Disputes Redressal Forum, Ernakulam, in short the District Forum. The District Forum dismissed the complaint on the finding that the complainant has no locus standi to file the complaint and that no unfair trade practice as alleged against the opposite party is made out by the complainant.
2. The 1st and 2nd complainants are father and son respectively and are co-owners of the apartment No. 37/2343 F5 constructed by the builder M/s. Desai Homes, Ernakulam, the opposite party. Lured and induced by the advertisement published by the opposite party in the year 2005, the complainants booked an apartment in a housing project by name “Platinum planet”. It was advertised in the brochure that the project will be an urban village living, a novel housing project, spread over in an area of 4 acres of land offering 384 flats. A mini super market, landscaped gardens, basket ball court and many other things were the additional attractions offered. The project was to be completed with the above facilities in the year 2007. However, the opposite party miserably failed to complete the project as offered. It was during 2010, after 3 years of scheduled date of completion, the apartment was handed over to the complainant and the deed of conveyance was executed. Thereafter the complainants started occupying the apartment. None of the facilities offered such as children’s play area, mini super market, day care facility, landscaped garden, Sauna steam bath facility etc. were provided as promised. The open area provided was only less than 10% as against the promised area of 40%. In spite of repeated requests made by the complainants as well as the other occupants of the apartment complex, the opposite party failed to provide the common amenities offered in the brochure. The opposite party has converted the open area into covered car parking area. The conduct of the opposite party is breach of contract and it would amount to unfair trade practice. The complainants therefore prayed for an order directing the opposite party to provide all the amenities offered by them in the brochure and to pay an amount of Rs. 2,00,000/- towards compensation for the delay in providing amenities and for causing mental agony to the complainants. It is also sought to direct the opposite party to hand over the project to the owner's association after fulfilling all the amenities offered in the brochure.
3. Opposite party filed version contending as follows: The brochure prepared by the opposite party is only for illustrative purposes. The details of facilities and amenities and terms of the contract are mentioned in the agreement for sale and agreement for construction executed by the complainants and the opposite party. The parties are purely governed by the terms of the agreement and the complainants cannot seek anything beyond the terms of the agreement dated 15.12.2002. The non-completion of the project in the year 2007 was for valid reason and the delay could not be attributed to the opposite party. Delay occurred due to order of stay issued by the Corporation of Cochin which was vacated only on 27.11.2008. The allegation that 40% of the total area was to be set apart for landscaping is totally incorrect. There was no unfair trade practice or any breach of contract on the part of the opposite party. The opposite party thus prayed for dismissal of the complaint.
4. Evidence in the case consists of oral testimony of 1st complainant as PW1 and Exts. A1 to A5 marked on his side. The commissioner was examined as PW2 and the commission report was marked as Ext. C1. The authorized representative of the opposite party gave oral evidence as DW1.
5. The District Forum on the basis of the materials produced and after considering the rival contention found that the authority to exercise rights over the common area is the apartment owner’s association and hence the complainant has no locus standi to file the complaint. The District Forum further found that the complainant failed to prove the allegation of unfair trade practice against the opposite party. The District Forum on the basis of these findings dismissed the complaint. Aggrieved by the order of dismissal the 1st complainant has filed this appeal. In the appeal the 2nd complainant is arrayed as the 2nd respondent since he is working outside India.
6. Heard the appellant and the 1st respondent. Perused the records. The learned counsel for the appellant contended that the complainant opted to purchase the flat on seeing the brochure and he was lured by the tall claims found in the brochure. The failure on the part of the opposite party to adhere to the terms and conditions in the brochure constitute unfair trade practice as defined under the Consumer Protection Act. The brochure was misleading and was made to hoodwink the customers. The opposite party has not done their obligation to fulfill the promise made out in the brochure. The brochure is to be treated as a part of the agreement. The commission report clearly pointed out the things that are to be carried out by the opposite party and also pointed out that many promises made in the brochure were not fulfilled by the opposite party. The brochure forms the integral part of the agreement. Opposite party in not fulfilling the conditions in the brochure, has done unfair trade practice, which aspect was ignored by the District Forum. He prays for allowing the appeal as well as the complaint.
7. The learned counsel for the 1st respondent, on the other hand, contended that the brochure prepared by the 1st respondent/opposite party is only for illustrative purpose. The details of facilities and amenities and terms of contract are mentioned in the agreement for sale and agreement for construction executed by the complainant and opposite party. The parties are purely governed by the terms of agreement and complainants cannot seek anything beyond the terms of the agreement which was executed on 15.12.2002. The opposite party has made the construction as per the building permit obtained from Corporation of Cochin. There is no unfair trade practice or deficiency of service on the part of the opposite party and hence prayed for dismissal of the appeal.
8. We have considered the arguments canvassed by both the counsel. In the agreement for sale there is mention about the common area and common facilities which are assigned to the complainant as well as all other owners of the apartment. The common areas and facilities which are made mention of in the agreement are “Proportionate share and right on the common areas and common facilities like lift, staircase and landing, flooring, concealed wiring and modern fittings, water tank, septic tank together with the easement rights in all other common facilities and accessories thereon along with other owners of the apartment without causing obstruction or inconvenience to others and to hold the said undivided share in the land along with other co-owners of the said land including the half part in depth of the joints between the ceiling of the said apartment and floor of the said apartment and internal wall between such levels”. The complainant canvassed that some of the facilities as stated in the brochure are made available to the owners of the apartment by the builder. To prove the same he had taken out a commission and his report is marked as Ext. C1. In the commission report, the facilities provided by the builder, as shown in the brochure are stated. The common facilities provided by the builder are mentioned in Ext. C1 report by the commissioner. The facilities provided by the builder as per Ext. C1 report are the play area, mini club house, a room for day care facility and some open area is used for landscape gardens and lawns. One guest room and basket ball area are also provided by the builder. From the above it can be noted that the builder has given some facilities mentioned in the brochure though not mentioned in the agreement, which clearly shows that the builder as well as the flat purchaser had fully known that all the facilities would be made available as mentioned in the brochure. Although the brochure is not part of the agreement, the builder/1st respondent has partly acted as per the brochure. The Hon’ble National Commission in the matter of “Ashok Kumar Shivpuri Vs. Ashok B. Chajar, CMD, Arihant Enterprises reported in 2019(4) CPR 38 (NC)” has held that “Assurance given in the brochure is the initial promise made based on which flat purchaser makes a decision whether to purchase the said flat or not”. Thus though specifically the brochure was not part of the agreement it can be so treated. In the brochure the 1st respondent builder had made many promises to the prospective buyer in order to allure him to buy the apartment. The specific case of the complainant is that they had booked the apartment lured by the facilities set out in the brochure. The facilities made mention of in the brochure are health club, sauna and steam, half basket ball court, billiards, table tennis and facility for dart, carroms and chess. Waste water recycling, rain water harvesting, landscaped gardens and lawns, guest room, driver’s dormitory, mini super market, day care facility and children’s play area are the other facilities mentioned in the brochure. The commissioner in Ext. C1 report has stated that some of the facilities though made mention of in the brochure are not provided by the builder. The commissioner has pinpointed the facilities not provided by the builder. They are: Half of the play area is converted into car parking area, the mini market is not functioning, one room which is allotted as day care is not functioning, there is no facility for waste water recycling, sewage treatment plant is not functioning, there is no rain water harvesting system, sauna and steam bathing facility though provided is not functioning, 40% of the area set apart for landscaped garden as stated in the brochure is converted into covered car parking area. From the commission report it is seen that though many facilities were provided in the brochure as stated above, all these facilities are not provided by the builder. It is evident from the records that the respondent at the time of securing the booking had painted a very rosy picture so as to attract the complainants to invest their hard earned money in the project in question, which was to be constructed by the builder. The contention of the respondent in this regard is that they have constructed the project as per the approved plan. The allegation that 40% of the area set apart for landscaped garden has been converted into car parking area is not correct. They have provided all the amenities mentioned in the agreement entered into between the parties. The structure is put up in accordance with the approved plan and the allegation that the open area is less than 10% instead of 40% of the total area made by the complainant is a misleading statement. The entire structure is put up in tune with the approved plan and permit. The brochure is only for illustration and they are bound only by the terms of the agreement between the parties.
9. We fail to understand how the respondent could, after giving a promise that he would provide all the facilities in the brochure and advertisement, back out from the promise and state that these facilities are not mentioned in the agreement for sale. The act of the 1st respondent/builder in not providing the ameniti
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es offered in the brochure and utilizing the open area for other purposes definitely amounts to unfair trade practice and deficiency in service on their part. The complainants are deprived of these facilities though promised in the brochure. The complainants had bought the apartment believing that all the facilities offered would be provided by the builder and since these facilities are not provided, naturally the complainants would have suffered much mental agony and suffering. The builder/1st respondent is, therefore, liable to compensate them for the injuries caused to the complainant. In these circumstances we feel it just and proper to allow an amount of Rs. 1,00,000/- as compensation to the complainant. The District Forum without looking into the above aspects dismissed the complaint which is erroneous and is liable to be set aside. We do so. In the result, this appeal is partly allowed and consequently the complaint C.C. No. 586/2012 on the file of CDRF, Ernakulam is partly allowed. The 1st respondent/opposite party is directed to pay a sum of Rs. 1,00,000/- as compensation to the complainant within one month from the date of receipt of this judgment failing which the amount shall carry interest @ 8% per annum. Parties to suffer their respective costs.