Everyday we hear home buyers complaining about poor service provided by developers. Poor maintenance of these services is another problem that every home buyer has to face. But, what do they do about it? Well, most of the time adjust to situations and accept them the way they are. Either home buyers have short memory or they completely ignored one of the most important judgement in the history of real estate.
Supreme Court and NCDRC orders builder to return Rs 33 crore maintenance fees
Do you recall this headline from newspapers? Well, let us try to explain it again. National Consumer Disputes Redressal Commission (NCDRC) directed the developers of Ambience Lagoon Apartments to refund 70% of the total maintenance money collected over 11 years to 345 flat owners for failing to offer services commensurate with the maintenance charged. This order was upheld by Hon’ble Supreme Court as well.
Ambience Island Apartment Owners alleged that, the Developer (Ambience) did not install the full numbers of Elevators, as promised and piled on the agony of the Flat Owners, by not maintaining the already installed lifts throughout the Apartment Complex. Their grievances are as follows:
- Builder advertised through Newspapers apartments with high-speed Elevators with one lift for every ten Apartments.
- He further advertised that four Elevators would be provided for each of the four Blocks.
- Builder, despite having chutes for four Lifts, provided only two Elevators in each of the above said four Block.
Poor Maintenance of Lifts:
- The crux of the whole problem is that, from day one, the lifts were very slow and prone to frequent breakdowns.
- Due to lack of any maintenance, most of the features of the lifts, including, but not limited to the alternate power source have become totally dysfunctional. In the event of power failure, the lifts are therefore plunged into darkness till the back-up of power source takes over, thus making it a harrowing experience for the people stuck in the lifts during power cuts.
- Lift provider, M/s. Scan Elevators, has throughout failed miserably to perform its duties during one year warranty period or subsequent maintenance of the lifts.
- M/s. Scan Elevators Ltd., was to provide 16 lifts, however, Eight lifts were not installed and by not installing the eight lifts, enriched themselves to the tune of Rs.1,28,00,000/-
- There is no deficiency on the part of the developer. All the lifts installed therein are of good quality.
- The lifts were installed before the possession and the occupation certificate which was received on 31.12.2001 from Town & Country Planning, Haryana, Chandigarh.
- The Complainants were fully aware on and before the booking of the flats regarding the quality of the lifts in question and the same were installed and maintained by builder.
- No complaint or representation regarding the above said defects were made to the developer by the residents.
- Builder buyer agreement supersedes the Brochures, Advertisements, Representations, Sale Plans, etc. It was the duty of the complainants to go through the Agreement, thoroughly.
- Buyers signed the papers with pen eyes. They are educated people. They are represented by an Advocate, who, also resides there. Consequently, the Brochure and Sale Plans pale into insignificance.
Scan Elevators / Lift Manufacturer’s Defense
- We have got no privity of contract with the home buyers / residents.
- We are neither an agent nor in any way connected with the management of residents or developer.
- We have even stationed its Engineers and team of Technicians permanently in the building and were providing 24 hours all-back service, though, the same was never stipulated in the terms and conditions.
- Sh. A.K.Verma, Electrical Engineer, appointed as Expert on behalf of the residents, submitted his affidavit, the relevant portion of which, is as under :- have visited one or more of the lifts installed. They do not qualify as high-speed elevators as their speed is less than 1.5 mtrs. per second. They are in a very sorry state of affairs as they seem to have remained unserviced for a long time and are thus in an urgent need of an exhaustive maintenance.
- There is not even an iota of documentary evidence, which may go to reveal that any action, any work, any payment, etc., was made to the maintainer of lifts, either by OP4 or any other maintenance company, for the last, more than a decade. Why are they charging, such a huge amount, towards maintenance.
- Why are they charging, such a huge amount, towards maintenance?
- Developer are liable to pay 70% of the maintenance charges from November, 2002, till date.
- The said amount be returned, within 90 days, with interest at the rate of 9% p.a., from the date of receipt of this order, else, it will carry interest at the rate of 12% p.a., till its realization.
- We impose costs on M/s. Scan Elevators Ltd., in the sum of Rs.1,32,000/- , to be divided by the complainants, in the sum of Rs.2,000/- each.
- Developers are directed to maintain the lifts every day, month and year. They are directed to maintain the record, in this context. Liability, if any, shall be saddled upon them if there is any accident or mishap.
Same order was upheld by Hon’ble Supreme Court too.
Copy of the order : Ambience Island Apartment Owners – NCDRC Judgement [Consumer case no. 93 of 2004]
We at The Logical Buyer are of the view that if developers have not honoured their commitments or the he carries out poor maintenance of the services, they must be challenged in court of law. Another takeaway from this order is, if the service are not adequate, higher maintenance charges by builder can be challenged in court. Builder’s agreements can not always supersede Brochures and homebuyers can demand facilities as advertised.
Courts does take time but home buyers must not give and exercise their rights.