Undue maintenance charges by builder


Hi, I would just like to brief you about the history of case, my father bought an under construction flat in a society, located at Greater Noida. We had paid all the sums required by builder by November 2016 and builder sent us a notice for fit out and registry of the same. However, due to my father accident we could not pay registry amount by March, 2017 and paid the same in June, 2017. For this delay, builder charged rs. 48,000 as holding charges which we got waived off by requesting the same. Please note that even paying registry money by June, 2017 the registry of flat was completed by builder in December, 2017. In the last demand letter, the builder has collected 1 year's maintenance charges in advance from us. When we went to take the possession of house in Jan 2018, after registry, we got to know that the modular kitchen and wooden work in rooms as promised by sales representative at the time of booking of flat was not being done. We instantly called that manager and asked them to do the same. He accepted his mistake and said that it will be done in a month. But it was just a fake promise, we followed up for more than one year and after 1.2 years of follow up, the builder completed the wooden work in Feb, 2019 and after that we took the possession. We did not take the possession before it as one of the clause of allotment agreement says, once possession taken, there will be no right on pending installations. After 2.5 years we got the possession of flat, but shocked to see that one years’ advance maintenance paid initially have been set up by builder and around Rs. 70,000 is pending as maintenance charge to be paid till date. I have raised the query with the builder and he said these wooden work was not written in your allotment letter and not part of the booking papers and hence, you are not allowed for waiver of maintenance charges. Yes it is true, that these fixtures were not written in allotment letter, however, at the time of signing up of the allotment agreement, we ask did ask the same from the sales person and he said that as all the flat owners above 17th floor will get these feature free and the present allotment letter is standard one and hence does not require to be included. But I have proofs of the same in the form of messages exchanged with Sales manager, emails and follow up messages etc. We are right now living in rent and due to this we were devoid from the rental income we would have earned. My query is whether (1) Our claim for waiver of maintenance charges are tenable in the eye of law though it is an oral contract but I have proofs as aforesaid and furthermore, builder has completed our promised wooden work which also signifies that it was promised else why he would do that? (2) Can builder charge maintenance charges before taking the possession of flat.? (3) Whether the above will be under the jurisdiction of RERA UP though OC, CC of the society are taken by the builder before the enactment of RERA Act or we need to file case under consumer forum? I request you to provide your learned advise on the above.
 
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LAWYER

You need to prove that wooden work was agreed to be done and included in the plan. However maintenance charges shall apply only aftet the date of possesion.

You need to solve amicably with builder or you can file a consumer complaint. 


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Thank you sir for prompt response. We have tried to discuss it with builder but he is not entertaining us. We had messages of the sales representative only which proves the same. But builder is denying all these messages and asking maintenance charges of past 2.5 years.. Whether consumer court will take moblie sms as proof of non performance of promise?
 
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Thank you sir for prompt response. We have tried to discuss it with builder but he is not entertaining us. We had messages of the sales representative only which proves the same. But builder is denying all these messages and asking maintenance charges of past 2.5 years.. Whether consumer court will take moblie sms as proof of non performance of promise?
 
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LAWYER

Section 65B of Indian Evidence Act

It states that irrespective of the sections in the act, any electronic act  which can be printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document.

Section 2(i) defines computer as “any electronic magnetic, optical or other high-speed data processing device or system which performs logical, arithmetic, and memory functions by manipulations of electronic, magnetic or optical impulses, and includes all input, output, processing, storage, computer software, or communication facilities which are connected or related to the computer in a computer system or computer network”. This definition also includes the mobile phones as well. It means that SMS/WhatsApp message would be admissible under the court of law for the documents are admissible under the Section 65 of Indian Evidence Act, 1872.

However, it has to fulfil four conditions mentioned in the section before it can be deemed as a document. Such conditions are a) the computer that produced it must have been used regularly at the time of production of such electronic documents; (ii) the kind of information contained in the computer must be such that it is regularly and normally supplied to the electronic device; (iii) the computer should be in proper condition and must work properly at time of creation of electronic record; and, (iv) the duplicate copy must be a reproduction of the original electronic record.

 

Position of Indian Courts

It is now well-established by the court that SMS, MMS and e-mails are admissible. In State of Delhi v. Mohd. Afzal & Others

 

SO all you need to do is to preserve the Evidance until prodduces in the court

 
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Thank you sir for your learned advise.
 
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LAWYER

 welcome.

 
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File a complaint before RERA where you may get Justice against that builder who cheated you for more clarity you may contact us.
Regards
Advocate Anurag Bhatt
Allahabad High Court
Mobile & WhatsApp 9198889990
 
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