NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.     1980 OF 2013 With(I.A. No. 3268 of 2013 for Stay)(From  order dated 18.03.2013 in First Appeal No.1365  of 2012    of the  State Consumer Disputes Redressal Commission, Haryana) Ansal Properties & Infrastructure Ltd. 115 Ansal Bhawan,16 Kasturba Gandhi Marg, New Delhi-110001                                                            ...…Petitioner 

 Versus Nidhi Jain w/o of Shri Parshant Kumar R/o A-171, Prashant Vihar, Delhi -110085.

                                                               ……Respondent                                                                             Nitin Jain S/o Ashok Jain, (R/o A-171, Prashant Vihar, Delhi-110085

......(through Attorney Holder) Vijay Kumar Jain S/o Shri Nihal Chand Jain, R/o 3346, Bankeders Enclave, Sector-55 D, Chandigarh

.....(through Attorney Holder) BEFORE:        HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER        HON’BLE MRS. REKHA GUPTA, MEMBER       For the Petitioner      :Mr.Saurabh Taneja, Authorized Representative Pronounced on:     5 th   July,     2013  ORDER 

PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER

          Being aggrieved by the impugned order dated 18.3.2013 passed by State Consumer

Disputes Redressal Commission, Haryana, Panchkula (for short, ‘State Commission’),

Petitioner/O.P. has filed the present revision petition.

2.       Brief facts are that respondent/complainant booked a flat situated at the Europa Residency,

Kundli, Sonepat which was provided by the petitioner. It is alleged that at the time of booking of

the above said flat, respondent deposited an amount of Rs.90,000/- and thereafter she also

deposited Rs.90,500/-, Rs.87,750/-, Rs.87,750/- and Rs.1,75,500/- i.e. total amount of

Rs.5,31,500/- on different dates upto 21.5.2010 with the petitioner against proper receipts and

petitioner also gave brochure of the flats scheme to her.

3.       It is also alleged that at the time of booking  of the flats, petitioner assured the respondent

that they will construct/prepare above said flats within a period of 36 months as mentioned in

para no. 10.1. a of the brochure and will construct the flats according to the norms of the

brochure. However, it was surprising for the respondent that petitioner not only is unable to

handover the possession but also it has not started the construction work of flats till today, which

shows that the petitioner has not fulfilled the terms and conditions of the Government of Haryana

and he was not fully authorized to construct the flats within a stipulated period. Thus, petitioner

not only cheated the respondent by way of abstracting money from the  respondent but also

played fraud upon the respondent.

4.       It is further alleged that when petitioner did not start the construction work on the site, the

respondent wrote several letters and brought the deficiency/negligence to the knowledge of the

petitioner. However, petitioner neither started the construction work of the flats nor replied the

letters of the respondent. Hence, respondent filed consumer complaint seeking the following

reliefs;i)       To make the interest @24% per annum to the complainant from the date

of  booking the flat and thereafter i.e. 18.1.2010 to 25.11.2010 till the date of possession of the flat.

ii)         To provide compensation of Rs.10,000/- per month for not handing over the possession of the flat in time to the complainant till the date of delivery of the possession.

iii)        To complete the construction work within 6 months from filing the present complaint.

iv)        To make payment of Rs.50,000/- on account of deficiency in service on the part of the respondent and on account of sufferings, mental agony, transportation, humiliation etc.

v)         To pay Rs.22,000/- as litigation expenses.

5.     Petitioner in its written statement has not denied the averments as made by the respondent

in para nos. 2 and 3 of its complaint with regard to the booking of the flat as well as deposit of

total amount of Rs.5,31,500/-. However, it is alleged that petitioner did not assure the

respondent that the construction work will be completed within 36 months. It is pertinent to

mention that respondent did not execute the Flat Buyer’s Agreement with the petitioner. As per

terms and condition of the agreement, as per term No. 12 “the company shall endeavour to offer

the possession of Apartment within 3 years from the date of sanction of building plans by the

authorities subject to majeure circumstances and on receipt of all payments punctually as per

agreed terms and on receipt of complete payment of the basic sale price.....”

6.   Further as per term no.13 of the agreement “if the construction of the premises is delayed

due to force majeure circumstances which interalia include delay on account of non availability

of building materials, or water supply or electric power or slow down strike or due to a dispute

with the construction agency, civil commotion, or by reason of war or enemy action or earth

quake or any act of God, delay in certain decision/clearances from statutory body, or if non

delivery of possession is as a result of any notice, order, rules or notification of the Government

and/or any other public or any competent authority or for any other reason beyond the control

of the company, then in any of the aforesaid event, the company shall be entitled to a reasonable

corresponding extension of the time of delivery of the said premises on account of the force

majeure circumstances. Further, in consequences of the company abandoning the scheme, the

company’s liability shall be limited to refund the amount paid by the allottee without any

interest. No compensation whatsoever shall be payable.

7.   District Consumer Disputes Redressal Forum, Sonepat (for short, ‘District Forum’) vide

order dated 23.10.2012, allowed the complaint.

8.         Being aggrieved by the order of District Forum, petitioner filed appeal before the State

Commission, which vide its impugned order dismissed the same.

9.         Hence, this revision.

10.       We have heard Mr. Saurabh Taneja, Authorized Representative of petitioner-company

and have gone through the record.

11.       It has been stated by A.R. of the petitioner that District Forum as well as the State

Commission have ignored the fact that the project itself admittedly has not yet taken off and

due to certain development at the level of the government the same may never come up. In the

light of the above directions regarding handing over of a flat that is not and may never be

constructed, is patently wrong and unsustainable. Another argument advanced on behalf of the

petitioner is that respondent has not executed the Flat Buyer’s Agreement with the petitioner

and in the absence of execution of such Agreement or any contractual obligation, both the fora

erred in passing the impugned orders.

12.       District Forum, while allowing the complaint in its order held;         “4.       After giving thoughtful consideration to each and every aspect of this

complaint, reply, points argued by the learned counsel for the parties at length and after perusing the documents very carefully and minutely, this Forum is of the view that the ends of justice would be fully met if the directions are given to the respondents to pay interest to the complainant for not handing over the possession of the flat in time to the complainant and the respondents are utilizing the huge amount of the complainant without providing any services to the complainant and the respondents have no right to utilize the amount of the complainant without providing any services to her. Accordingly, we direct the respondents to pay interest to the complainant on the amount deposited by her during the period w.e.f. 18.1.2010 to 25.11.2010 at the rate of 9% per annum from the date 18.1.2010 to 25.11.2010 till the date of possession of the flat and further to compensate the complainant to the tune of Rs.1,000/-(Rs. One thousand) for rendering deficient services, for causing unnecessary mental agony & harassment and under the head of litigation expenses”.

13.       State Commission while upholding the order of District Forum, in its impugned order

observed;

          On behalf of the appellant it was argued that the complaint filed by the complainant was premature having been filed before the expiry of 36 months and thus was liable to be dismissed.        During hearing, the appellant was asked to verify as to whether the construction work of the project was complete by now, when 36 months have already expired, to which the reply was in negative. Thus, it is established on the record that the opposite parties have failed to fulfil the terms of the agreement with respect of the allotment of the flat to the complainant and therefore no case for interference in the impugned order is made out. The complainant, who had deposited the huge amount with the opposite parties, is certainly entitled to interest on the same for the delayed period in delivery of possession to the complainant.    In view of the above, this appeal is dismissed being devoid of any

merit”.

14.       This plea taken by the petitioner in its revision petition that due to certain development

at the level of the government the project itself has not taken off and as such directions

regarding handing over of a flat are patently wrong, are absolutely false on the face of it, in

view of the Apartment Allottees Agreement which has been relied upon by the petitioner. As

per Clause 2 A of this agreement, the petitioner had started the development of  “THE

EUROPA RESIDENCY” which was duly approved by the Government of Haryana and this

Clause read as under;             “WHEREAS the Company has been developing an integrated Group

Housing Complex/Apartment over a piece and parcel of land admeasuring 5.85 acres approx. in the revenue estate of Village Badkhalsa, Tehsil and District Sonepat, Haryana, hereinafter referred to as the ‘Group Housing Project Land’ in the name and style of ‘THE EUROPA RESIDENCY’ which also situated within the colony, namely ‘SUSHANT CITY, KUNDLI’, being developed by the COMPANY and duly approved by the Govt. of Haryana”.

15.     In view of petitioner’s own documents, now it does not lie in its mouth to take this plea,

that the State Government has not approved the Scheme. With regard to the execution of the

Buyer’s Agreement, there is nothing on record to show that petitioner ever asked or gave any

notice to the respondent, to execute the Buyer Agreement or respondent had ever refused to

execute that agreement.

16.       Present revision petition has been filed under Section 21(b) of the Consumer Protection

Act,1986 (for short, ‘Act’). It is well settled that the powers of this Commission as a Revisional

Court are very limited and have to be exercised only, if there is some prima facie jurisdictional

error in the impugned order. 

17.       Hon’ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance

Co. Ltd. 2011 (3) Scale 654 has 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 than 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 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 findings of two fora”.

18.     Petitioner/builder in the present case “wants to have the cake and eat it too” as admittedly

it has already received a sum of Rs.5,31,500/- towards the cost of the flat. Thus, petitioner being

the builder is enjoying the huge amount deposited by the respondent without any hindrance. On

the other hand, respondent having paid substantial amount of consideration is still without any

roof.

19.    Such type of unscrupulous act on the part of petitioner/builder should be dealt with heavy

hands, who after grabbing the money from the purchaser, enjoy and utilize their money but does

not hand over the flat, on one pretext or the other. Petitioner has made respondent run from one

fora to other so that respondent cannot have any roof over her head and petitioner can go on

enjoying respondent’s money without any hindrance.  

20.     Thus, no jurisdiction or legal error has been shown to us to call for interference in the

exercise of power under section 21 (b) of  the Act, since, two fora below have given cogent

reasons in their orders, which does not call for any interference nor they suffer from any

infirmity or revisional exercise of jurisdiction.

21.    In Ravinder Kaur Vs. Ashok Kumar, AIR 2004 SC 904, Apex Court observed ;

“Courts of law should be careful enough to see through such diabolical plans of the judgment debtor to deny the decree holders the fruits of the decree obtained by them.  These type of errors on the part of the judicial forum only encourage frivolous and cantankerous litigations causing law’s delay and bringing bad name to the judicial system”.

22.     It is well settled that no leniency should be shown to such type of litigants who in order to

cover up their own fault and negligence, goes on filing meritless petitions in different foras.

Time and again Courts have held that if any litigant approaches the Court of equity with unclean

hands, suppress the material facts, make false averments in the written statement and tries to

mislead and hoodwink the judicial Forums, then its defence should be thrown away at the

threshold. Equity demands that such unscrupulous litigants whose only aim and object is to

deprive the opposite party of the fruits of the decree must be dealt with heavy hands.

Unscrupulous builders like petitioner who after taking entire cost of the flat do not perform its

part of obligation, should not be spared.  A strong message is required to be sent  to such type of

builders that this Commission is not helpless in such type of matters.

23.     Now question arises for consideration is as to what should be the quantum of costs which

should be imposed upon the petitioner for dragging the respondent upto this fora.  It is not that

every order passed by the judicial fora is to be challenged by the litigant even if the same is

based on sound reasonings.

24.     Apex Court in Ramrameshwari Devi and Ors. Vs. Nirmala Devi and Ors., Civil Appeal

Nos.4912-4913 of 2011 decided on July 4, 2011 has observed ;“45.  We are clearly of the view that unless we ensure that wrong–doers are denied profit or undue benefit from the frivolous litigation, it would be difficult to control frivolous and uncalled for litigations. In order to curb uncalled for and frivolous litigation, the Courts have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that court’s otherwise scarce and valuable time is consumed or more appropriately wasted in a large number of uncalled for cases”.

Apex Court further held;                   “It is also a matter of common experience that to achieve clandestine

objects, false pleas are often taken and forged documents are filed indiscriminately in our courts because they have hardly any apprehension of being prosecuted for perjury by the courts or even pay heavy costs. In Swaran Singh Vs. State of Punjab (2000) 5 SCC 668 this court was constrained to observe that perjury has become a way of life in our courts.

                         It is a typical example how a litigation proceeds and continues and in the end there is a profit for the wrongdoers.

     Learned Amicus articulated common man’s general impression about litigation in following words :

   “Make any false averment, conceal any fact, raise any plea, produce any false document, deny any genuine document, it will successfully stall the litigation, and in any case, delay the matter endlessly.  The other party will be coerced into a settlement which will be profitable for me

and the probability of the court ordering prosecution for perjury is less than that of meeting with an accident while crossing the road”.

25.  Thus, in our opinion, the present petition is nothing but a gross abuse of the process of law and the revision petition is totally meritless and  frivolous, which is required to be dismissed with punitive costs of Rs.1,00,000/-(One lakh only). Accordingly, we dismiss the present petition with costs of Rs.1,00,000/- (Rupees  One lakh only). 

26.        Out of the costs imposed upon the petitioner, Rs.50,000/-(Rupees Fifty Thousand only)

be paid to respondent no.1–Nidhi Jain by way of demand draft in her name. Remaining costs of

Rs.50,000/- (Rupees Fifty Thousand only) be deposited by way of demand draft in the name of

“Consumer Legal Aid Account” of this Commission, within one month from today.

27.     In case, petitioner fails to deposit the aforesaid costs within the prescribed period, then it

shall also be liable to pay interest @ 9% p.a., till realization.

28.     Costs awarded to respondent no. 1 shall be paid only after expiry of the period of appeal or

revision preferred, if any.

29.     Pending application also stands disposed of.

30.     List on 23.08.2013 for compliance.                                    ……..……………………J

(V.B. GUPTA)         ( PRESIDING MEMBER)

                                                                      …………………………                                                        (REKHA GUPTA)                                                                            MEMBERSSB               

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

 REVISION PETITION NO. 2248 OF 2013

       (Against order dated 22.11.2013 in First Appeal No. 143 of 2012 of the     Haryana State Consumer Disputes Redressal Commission, Panchkula)

 Today Homes Infrastructures Pvt. Ltd., Statesmen House, 8th Floor, New Delhi-110001

…Petitioner  Versus

 1.   Mr. O.P. Ratra M-86 FF, Blossoms-II Sector-51, Gurgaon-1220182.   Mrs. Harmeet Ratra W/o Mr. O.P. Ratra M-86 FF, Blossoms-II, Sector-51,     Gurgaon-

122018…Respondents

  BEFORE:     HON’BLE MR.JUSTICE J.M.MALIK, PRESIDING MEMBER    HON’BLE DR.S.M.KANTIKAR, MEMBER For the Petitioner(s)              :         Ms.Ruhi, Advocate 

PRONOUNCED ON               JULY, 2013

ORDER

PER DR. S.M. KANTIKAR

1.      The Revision Petition is filed against the impugned order of Haryana State Commission Disputes Redressal Commission, Hyderabad (in short, State Commission, Haryana) in First Appeal Number 143 of 2012 against the Consumer Complaint No. 722/2009 of District Consumer Disputes Redressal Forum, Gurgaon(in short District Consumer Forum). The Facts in Brief are these.

2.      The Respondents/Complainants One Mr. O.P. Ratra and Mrs. Harmeet Ratra had booked two floors in the project of Petitioner/Opposite Party units bearing No. 86 at Ground Floor and First Floor, Blossom-II at Sector-51, Gurgaon. The Complainants wrote a letter on 04.08.2005 to the Petitioner and sought concession of Rs.3,00,000/- for the direct booking and deposited Rs.59,40,000/- as a down payment plan for the two floors in total. As per Agreement entered between the Complainants and Opposite Party the possession of unit was to be delivered within 21 Months but the OP offered possession along with final demand notice on 13/8/2007 for the same of Rs.8,28,094/- of 29 months as detailed below:. 

 

 

 

 

 

3.    The Complainants did not accept the above said offer because of delay of 29 months and by various reasons like the Units and Blossoms II, Complex were (i) not habitable (ii) nor in a capacity of ready to move in with no facilities/utilities, horticulture, water and power supply (iii) no motorable inside roads and proper entry of the complex from the main road. Complainants

1. Total Sale Consideration: Rs. 65,07,000/-2. Early Payment discounts (if applicable) Rs.60,000/-3. Amount received till date Rs.59,40,000/-4. Balance Payable Rs.5,07,000/-5. Interest on delayed payment, if any Rs.2,96,094/-6. Maintenance Security Rs.25,000/-        

further alleged that the demand of the OP with respect to interest of Rs.2,96,094/- was wrong as per their letter dated 04.08.2005. OP stated that the delay in offering the possession was due to non-availability or sanction of power supply by the State electricity board. Subsequently on demand from builder the compliant cleared the final payment of Rs.5,32,000/-+ interest of Rs. 1,91,094/- in full and final settlement for Unit No. M 86 (GF & FF) in Blossoms_II, Gurgaon and requested for delivery of physical possession of their Units within one week after completing the leftover work. Thus, the Complainants paid a total sum of Rs.66,88,094/- as on 07.06.2008/22.07.2008 including the additional Maintenance Charges (IFMS Charges) worth Rs.25,000/- and again prayer for delivery of physical possession was made. But the OPs further delayed and the physical possession of the Units was given after 41 months i.e. a delay of 20 months and the same was taken by the Complainants on 25-08-2008. As per agreement, the Complainants were entitled for compensation @ Rs.5/- per sq. ft per month for delay of 20 months of the Units which amount to Rs.3,00,000/-. Complainants further sought interest @12% per annum on the deposited amount from the date of each deposit on the total amount of Rs.66,88,094/-. Thus, alleging deficiency in service on the part of the OP, the Complainants filed complaint before the District Forum.

4.      The District Forum dismissed the Complaint.

5.      Aggrieved by the order of the District Forum the Complainants have preferred an Appeal before the State Commission. The State Commission heard both the parties wherein the Complainants restricted as arguments only with respect to charging of interest of Rs.1,91,094/- by the Respondent-Ops. The State Commission after the appraisal of pleadings and evidence of both parties on record allowed the appeal No.143/2012 with following findings as,

“ keeping in view the facts and circumstances of the case and to bring the parties at an equal status, we hold the opposite parties deficient in service for not delivering the possession of the units to the complainant within 21 months and further hold them guilty indulging in unfair trade practice adopted by them for charging interest of Rs.1,91,094/- (Rs.91,094/- through cheque No.901953 dated 07.06.2008 and Rs.1,00,000/- through cheque No.349123 dated 07.06.2008), which could not be charged. The Complainant O.P. Ratra, who is Senior Citizen, has been put to great inconvenience by not delivering the possession of the flat in time and at time and at the old age of 74 years, he has to run from pillar to post to get justice. Keeping in view that the interest of Rs.1,91,094/- was charged by the opposite party, the same is to be refunded to the  complainant”

 

6.      Against the said impugned order of State Commission, this revision petition.

7.         The learned counsel appearing for petitioner vehemently reiterated the submissions made before the State Commission. We have perused the entire material placed on record and the contentions of both the parties.

8.       There is delay of 87 days in filing this revision petition. The petitioner moved an application for condonation of delay and the reasons sated therein are as follows:

“a) It is stated that the legal officer of the Applicant Company, who was dealing with the matter, left the Applicants Company office in January 2013.

b) It is further stated that after the said legal officer left the Applicant Company, the whole file of the matter along with the certified copy of the order of the State Commission was not traceable, due to shifting of some files for some renovations in the office.

c) It is stated that, only when a new legal officer joined the office in May 2013, that the file was traced back and the matter could be revamped”.

 

9.     The petitioner did not explain day-to-day delay. The reasons quoted in the application are not acceptable to us those appears to be vague and imaginary in nature.

10.   Considering the merits of this petition; it is very clear from the documents on record that the petitioner had NOT given physical possession of the units to the Complainants after 21 months from the date agreement but the same was delivered after 41 months. Hence, the petitioner delayed the possession for 20 months. This is deficiency in service. The petitioner tried to cover up its deficiency by taking the plea that the delay was caused due to non-availability of the electricity by the Electricity Department and the possession could be taken without the electricity connection. In our view once the Complainants had paid the entire price of the Units the possession should be given with all amenities. The petitioner failed to do so, which is deficiency in service.

11.     In our observation the petitioner claim his right to charge interest @ 15% which appears to be unjust and an exploitation of consumers. Hence, Petitioner is charging interest of Rs.1, 91,094/- which was not proper and is an unfair trade practice. As the Complainants are 72 and 68 years old, senior citizen suffered exploitation and in-convenience due to non-delivery of the flat within specified period of time and made him run from pillar to post.

12.     In conclusion, we do not find any merit in this petition, as well there is unexplained delay of 87 days filing this revision petition. There is no illegality in the order of State Commission. Therefore, we dismiss this revision petition. No costs.

 

.…..…………………………(J. M. MALIK, J)

                            PRESIDING MEMBER                        .…..…………………………

(S. M. KANTIKAR)                MEMBER

Mss  

 

 

 

 

 

 

 

 

 

 

 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

FIRST APPEAL NO. 327 to 379 OF 2012

(Against the Order dated 27/04/2012 in Complaint Case No. 13/2010 of the State Commission Andhra Pradesh)

M/s. Maytas Properties Ltd. (Formerly Maytas Hill County Pvt. Ltd.) Regd. Office at Maytas Hills County Ltd. Through its authorized signatory, Sh. C. Nagaiah, Senior Manager, Bachupally, Miyanpur, Hyderabad Andhra Pradesh

… Appellant

Versus

1. Bharati Khurana D/o Ramesh Chander Khurana, R/o Pond Ave. Brokline, MA-02445, USA

2. Mrs. Asha Khurana, W/o Ramesh Chander Khurana, R/o 103, New Swastik Apartments, Sector-9, Rohini, New Delhi -110085

Both rep. by their GPA Holder Shri Sandeep Khurana, S/O Mr. Ramesh Chander Khurana, R/o 501, Block -2B, SMR Vinay Acropolis White Fields, Opp. Jayabheri Silicon Valley, Knodapur, Hyderabad

PRONOUNCED ON  08.07.2013

O R D E R

ASHOK BHAN, J., PRESIDENT

First Appeal Nos. 327 to 386 of 2012 have been filed by the Appellant/Developer, M/s. Maytas

Properties Ltd. (formerly known as M/s. Maytas Hill County Pvt. Ltd.) against the judgments

and orders dated 27.04.12 passed by the State Consumer Disputes Redressal Commission,

Andhra Pradesh (in short, 'the State Commission') in 60 complaints filed by the

Respondents/Complainants wherein the State Commission relying upon its own order passed in

C.C. No.30/09 against the very same Developer which was modified by this Commission and

upheld by the Hon’ble Supreme Court, allowed the complaints and directed the Developer to

refund the amounts deposited by the Respondents/Complainants along with interest @ 12% p.a.

from the respective dates of deposit till payment together with compensation of Rs. 1,00,000/-

and costs of Rs. 10,000/-.

First Appeal Nos. 387 to 400 of 2012 and First Appeal Nos. 14 to 25 of 2013 have been filed by

the Appellants, State Bank of India and ICICI Bank Ltd. respectively against the judgments and

orders dated 27.04.12 passed by the State Consumer Disputes Redressal Commission, Andhra

Pradesh (in short, the “State Commission”) in 26 complaints whereby the State Commission

allowing the complaints has directed the Appellant Banks to recover the loan amount borrowed

to the Respondents/complainants from the Developer and credit it to the loan accounts of the

Respondnets/Complainants.

First Appeal Nos. 717 to 720 of 2012 have been filed by the Appellant/Developer, M/s. Maytas

Properties Ltd. against the judgment and order dated 25.09.12 passed by the State Consumer

Disputes Redressal Commission, Andhra Pradesh (in short, ‘the State Commission’) in

complaint case nos. 79 & 82/09 and 1 & 97/2010 wherein the State Commission allowing the

complaints has directed the Developer to refund the amount deposited by the

Respondents/Complainants along with interest @ 12% p.a. from the respective dates of deposit

till payment together with compensation of Rs.1,00,000/- and costs of Rs. 10,000/.

First Appeal No.8 of 2013 and First Appeal No.29 of 2013 have been filed by the Maytas

Properties Ltd. and the State Bank of Bank respectively challenging the order dated 19.10.12

passed by the State Consumer Disputes Redressal Commission, Andhra Pradesh in CC No.81/09

wherein also the State Commission allowing the complaint has given the same directions as

above to the Developer and the Bank.

First Appeal Nos. 781 & 783/12 have been filed by the Developer and the State Bank of India

respectively against the common judgment and order dated 5.11.12 passed by the State

Consumer Disputes Redressal Commission, Andhra Pradesh in CC No.75/10 wherein State

Commission allowing the complaint has given the similar directions to them.

State Commission dismissed the complaints against the land owner companies.

Since the Developer had executed sales deeds in favour of some of the

Respondents/Complainants, the State Commission has directed those Respondents/Complainants

to re-convey the property to the Developer on receipt of refund of the amount.

It is pertinent to mention that the State Commission has segregated the complaints into several

categories and disposed of them by similar orders dated 27.04.12.  The complaints in which the

Bank was not a party and where loans were not availed of, were disposed of by 2 separate but

similar orders.  The complaints in which banks/financial institutions were made parties had been

disposed of vide 5 separate but similar orders.  The banks/financial institutions which were

arrayed as parties in the complaints are, State Bank of India, ICICI Bank Ltd. IDBI Bank, Axis

Bank Ltd. BHW Home Finance.  All the orders passed by the State Commission are identical, in

addition to the directions of refund to the Developer where the Banks are also made a party.

Since the question of law and facts involved in all these Appeals are the same, we propose to

decide all the Appeals by a common order.

AVERMENTS MADE IN THE COMPLAINT:-

Appellant/Developer, M/s. Maytas Properties Ltd. (hereinafter to be referred to as “the

Developer”) - entered into a Development Agreement cum General Power of Attorney bearing

No. 102/206 dated 30.12.05 with the 14 land owner companies for development of Ac. 85.36

Guntas of land situated in Survey No. 192/P to 198/P, 201/P and 282/P at Bachupally Village,

Qutubullapur Mandal, Rang Reddy District. Developer obtained layout permission from

Hyderabad Urban Development Authority (HUDA) on 21.03.06 for development of a township

known as “Maytas Hill County” consisting of 364 independent villas and multistoried

residential apartments together with facilities like club apartments, parks, open spaces, gym,

health clubs, playgrounds, shopping centre etc. Developer further entered into agreements of

sale with the Respondents/Complainants (hereinafter to be referred to as the “Respondents”) for

booking of flats/villas/apartment. As per agreements of sale, the sale consideration was agreed

to be paid in installments, i.e., 10% of the sale consideration on the date of booking, another

10% within 15 days from the date of booking and remaining in phased manner and 5% at the

time of handing over the possession of the flat. Some of the Respondents approached the

Appellant Banks for grant of housing loan. The Appellant Banks agreed to grant the home loan

as per tripartite agreements executed between the Bank, Developer and the Respondents.

Developer executed registered sale deeds in favour of some of the Respondents in respect of

undivided share of land together with unfinished structure.

As per Agreements of Sale, construction of the flats/apartments was to be completed within one

year with a grace period of three months. On 07.01.09, founder of M/s. Satyam Computer

Services Ltd., Shri Ramalinga Raju confessed that he had diverted the funds from Developer to

computer services and, therefore, there could be delay in completion of the project. Criminal

proceedings were initiated against the Directors of the Developer. There was an award passed

against the Developer for Rs.600 crores together with interest of Rs.221 crores. Respondents

alleged that the Developer was deficient in rendering service by not completing the construction

within the stipulated time and in diverting the funds; that they could not collect more than 20%

towards advance as per Section 5 of the Andhra Pradesh Apartments (Promotion of Construction

and Ownership) Act, 1987; that the Banks had disbursed the entire loan amount to the

Developer without any physical verification or valuation by a valuer of the construction contrary

to the agreement of sale and tripartite agreement. Complainants, being aggrieved, filed the

complaints before the State Commission.

STAND TAKEN BY THE DEVELOPER

On being served, Developer entered appearance and filed its written statement contesting the

complaints on the grounds; that the Developer commenced the project as per schedule but on a

wholly incorrect understanding of Developer’s association with Mr. B. Ramalinga Raju,

Founder of M/s. Satyam Computer Services Ltd. the various investigations and proceedings

were instituted against the Developer; that the Banks/financial institutions which had committed

funding withdrew from the project as a result of which the project could not be developed; that

the delay in completion of the project was due to ‘force majeure’ which was beyond the control

of the Developer; that the Developer constructed and delivered possession of 140 independent

houses to some of the purchasers and 172 houses were in final stages; that pursuant to the

enquiries initiated against M/s. Satyam Computers Ltd. the case of the Developer was referred

to the Company Law Board (in short “CLB”) which appointed SBl Capital Markets Ltd. (in

short “SBl Cap”) as transaction Advisor; that the CLB passed an order dated 13.01.11 inducting

M/s. Infrastructure Leasing and Financial Services Ltd., M/s. IL&FS Financial Service Ltd. and

M/s. IL & FS Engineering and Construction Company Ltd. into the company as shareholders by

allotting preferential shares; that the Board of Directors of the Developer was re-constituted; that

the new Board of Directors made efforts to arrange further funds to complete the project; that

the complaints filed by the Respondents before the State Commission were not maintainable as

in terms of Agreements of Sale in case of any dispute the matter was required to be referred to

the Arbitrator for resolving the same; that by virtue of the orders passed by the CLB on 05.03.09

and 13.01.11, the complainants could not seek relief before the consumer fora and they were

required to approach the CLB.

STAND TAKEN BY THE APPELLANT BANK

Appellant Banks, in the cases where the home loan was obtained by the

Respondents/Complainants, contested the complaints on the grounds; that the Respondents,

Developer and the Bank entered into a tripartite agreement and the Bank had disbursed the loan

amount against the mortgaged property directly to the Developer on behalf of the Respondents

as per agreed terms of the tripartite agreement; that the disbursement of loan to the Developer

was not on the basis of different stages of construction of the flats but was on the basis of the

due date fixed for payment as per agreement of sale; that as per tripartite agreement, the

Developer and the Respondents were liable to indemnify the Bank against any risk which might

arise on account of any defect in the title to the property; that the Respondents could not stop

payment of EMIs on the ground that the Developer failed to complete the construction or hand

over possession of the flats; that the Respondents were estopped from making any claims in the

light of the terms of tripartite agreement.

During the pendency of the complaints before the State Commission, the Developer moved

Miscellaneous Applications seeking dismissal of the complaints on the ground that the

complaints were not maintainable in view of the arbitration clause in the agreements of sale.

That as per Arbitration Clause in case of dispute, the matter was required to be referred to the

Arbitrator and the jurisdiction of the Civil Court/any other forum was ousted by the said

Arbitration Clause. The said applications were dismissed by the State Commission holding that

the Consumer Fora constituted under the Consumer Protection Act, 1986 had the jurisdiction to

try, entertain and adjudicate upon the complaints as per law laid down by the Apex Court in

catena of judgments. Feeling aggrieved, Developer filed Writ Petitions (27689/10 and batch)

before the Andhra Pradesh High Court which were dismissed by observing as under:- 

“ Having regard to the interpretation given by the Supreme Court in FAIR AIR ENGINEERS PVT. LTD ( supra) with regard to Section 3 of the 1986 Act and the ratio in LUCKNOW DEVELOPMENT AUTHORITY (supra), we are of the view that the 1986 Act, being a special enactment, created an additional remedy in favour of the consumers to raise consumer disputes before the Fora constituted under the said Act, and that Section 8 of the Arbitration Act does not have the effect of taking away such a remedy from the consumers as in the case of civil suits, which are in the nature of common law remedies. If a party chooses to avail a remedy other than the consumer dispute, he shall be free to do so because the remedy under the 1986 Act is not in derogation of the other remedies available to such a party and he cannot be denied such right on the ground of availability of an alternative remedy, such as Arbitration Act as Section 3 of the 1986 Act is intended to provide an additional remedy to a party and the same is not meant to deny such a remedy to him. Further, by virtue of Section 17 of the Consumer Protection Act the parties can undoubtedly resort to filing of the complaint as specified under section 17 of the Consumer Protection Act The restriction as to the inherent jurisdiction would not come in the way for the complainant to file the complaint, provided he fulfils the conditions mentioned in section 17 of the Consumer Protection Act. ”

Developer, being aggrieved, filed SLP (C) No. 30367/11 which was dismissed as withdrawn by

the Supreme Court vide order dated 18.11.11 with the following observations:-

“        If the petitioners file an appeal before the National Consumer Disputes Redressal Commission (for short, ‘the National Commission’) within 30 days and apply for condonation of delay then the prayer shall be considered by the National Commission on its own merits and decided keeping in view the fact that the petitioners had been pursing remedy before the High Court.

 It is needless to say that the National Commission shall decide the appeal uninfluenced

by the observations made in the order passed by the High Court.”

State Commission, after taking into consideration the facts, pleadings and the evidence led by

the parties, came to the conclusion that the Developer was deficient in rendering service by not

completing the construction of the flats/handing over the possession of flats within the stipulated

time as per Agreements.

State Commission relying upon its earlier judgment passed in Complaint Case No.30/09 against

the same very Developer which was modified by this Commission and upheld by the Hon’ble

Supreme Court, allowed the complaints and directed the Developer to refund the amounts

deposited by the Respondents/Complainants along with interest @ 12% p.a. from the respective

dates of deposit till payment together with compensation of Rs.1,00,000/- and costs of

Rs.10,000/-. Since, in some of the cases the Sale Deeds were executed in favour of the

Respondents, the State Commission directed the Respondents to re-convey the property to the

Developer on receipt of the refund of the amount. Complaints against the land owner companies

were dismissed.

State Commission held the Developer deficient in rendering the service by observing as under:- “26. Since the developer could not prove the stages of construction or that it

would hand over possession within a reasonable period, and the period that was originally stipulated was already expired, and all through the complainants have been paying EMIs, we are of the opinion that it would be unjust that the complainants be directed to go on paying the amounts to the banks without there being any hope of getting the project completed.

27. The Complainant by issuing notice to the developer cancelled the above said agreement and directed the Developer to pay the consideration received so far, as no construction was taken up nor completed, and sought for refund of the amount with penalty @ Rs.5/- per sfts. as per clause 7 (a to d) of the agreement. However, we do not see any justification in impleading the original owners of property, who have no subsisting interest in the property. They have parted their title in favour of the Developer. Therefore, the claims against them do not sustain. The complaints are liable to be dismissed against them….

29.         In some of the cases, sales deeds were executed in favour of the complainants by the developer conveying the title. Obviously, the complainants cannot have title as well as refund of the amount, since the very sale has been frustrated, in such a case, when the developer has executed the sale deed and there is no prospect of either constructing flats or delivering the property to the complainants, the Hon’ble Supreme Court in somewhat similar case Vinod Kumar Thareja Vs. M/s. Alpha Construction reported in CPJII (2011) CPJ 3 SC while giving direction to refund the amount also directed to re-convey the property to the builder. Therefore, we direct the complainants to execute re-conveyance deed on receipt of amount payable by the developer. The registration charges shall be borne by the developer. This is in conformity with the above said decision of the Hon’ble Supreme Court.

 30.           We may also state herein that the orders of this Commission against the

same developer (vide C.C.No.30/2009) directing to refund the amount with interest @ 12% p.a has been upheld by the National Commission in F.A. No.189/2010 while reducing the compensation from Rs.5 lakhs to Rs.1 lakh. The SLP moved by the developer before the Hon’ble Supreme Court in Appeal (Civil) No. 26256/2010 was dismissed on 27.09.10. Therefore, these matters are covered by the above decisions and there is no need for any distinction to be made between these cases. These contentions do not sustain.” 

IL & FS which was inducted and permitted to complete the project by the CLB

vide its order dated 13.01.11, raised an additional plea which was not raised earlier by the

Developer in Complaint Case No.30/09 that by virtue of orders of the CLB dated

05.03.09 and 13.01.11 which were passed with the consent of Respondents, the

Respondents could not seek the relief before the consumer fora and they ought to have

approached the CLB for redressal of their grievances. The said contention was rejected

by the State Commission   on   the   grounds;   that  neither the Respondents were

a party to the proceedings pending before the CLB nor were they issued any notice by the

CLB; that the orders passed by the CLB were  not binding upon the Respondents and did

not bar the consumer fora to decide the complaints filed by them.

In the complaints in which the Banks/Financial Institutions were made a

Respondent Party, State Commission held that the Appellant Banks/Financial Institutions

were deficient in rendering service in disbursing the loan amount to the Developer

without verifying the stage and nature of the construction. State Commission also held

that the Respondents were not liable to pay any further EMIs. State Commission directed

the Banks/financial institutions to recover the loan amount plus whatever interest due

from the Developer and credit it to the loan account of the Respondents.

State Commission observed as under:-

“        The bank has undoubtedly violated the terms of the tripartite agreement and released the amount even without bothering to verify as to the stage and nature of construction. In other words, the bank financed to a non-existent project or incomplete project, duping its own customers. Now the complainants would be unnecessarily hard pressed to pay the amounts towards EMI without there being any hope of getting the apartments as the developer is under winding up proceedings. The bank cannot take advantage of its own indiscretion. This is unjust and unethical. If the bank released the amounts contrary to tripartite agreement it has to suffer for the consequential losses. Whatever loss caused thereby it could as well as approach appropriate forum for recovery of the amount from the developer, to which it has released the amount in one go. The bank under the terms entitled to recover from the developer to which it had paid the amounts. It cannot turn round and claim against the complainants. It is not under original stipulation that the bank had to pay the entire amount to the developer. The developer also agreed to refund the amount if there are cancellations of the agreement or failure to fulfill its commitments. The agreement that was arrived at earlier was fair and no party would benefit from the lapses or mistakes of the other. Therefore, the complainants are not liable to pay the EMIs.“        The Bank has to collect the loan amount plus whatever interest and other legally permissible charges from the developer and credit it to the complainant’s loan account.  It shall not collect further EMI’s nor entitled to any more amount except the amount, if any, remained unpaid by the complainants towards loan granted to him.  The Bank has no authority to complain to CIBIL.  In fact if there is a provision, the CIBIL has to enter the name of the bank, as one of the violators of guidelines of the banks.”

Feeling aggrieved, the Developer as well as the Banks have filed the present

appeals.

We have heard the Ld. Counsel for the parties at length.

SUBMISSIONS MADE IN FIRST APPEAL NOS. 327 TO 386 OF 2012, 717 TO 720 OF 2912, 781/12 AND 8/13 FILED BY THE DEVELOPER 

Ld. Senior Counsel, Shri A.M. Singhvi, appearing for the Developer contends that

the expiry date of construction was not the same for all the agreements of sale as the

agreements of sale were executed on different dates till the end of the year 2009; that

since the project was abandoned midway and construction activity came to a standstill for

a period of two years after the Satyam scam; the purchasers under the misapprehension

that the project will not be completed, stopped paying the installments and the various

Investors/Banks/Financial Institutions which had committed funding of the project, also

withdrew from the project; that due to acute shortage of funds the development of the

project was jeopardized; that various attachments and court orders also delayed the

project; that pursuant to the inquiries initiated against M/s. Satyam Computers Services

Ltd., the case of the Developer was referred to the CLB; that CLB vide order dated

13.01.11 inducted IL & FS group as the new promoter of the Developer and consequently

the Board of Directors of the Developer was re-constituted; that with the new

arrangements made by the CLB, the Developer has completed 9 out of 11 Apartment

Towers of the “Hill Country Project”; that the Developer is in a position to hand over the

possession of the flats to the Respondents; that by virtue of order dated 13.01.11 passed

by the CLB, the Respondents could not seek remedy of their grievances before the

Consumer Fora; that the State Commission erred in holding that the order passed by the

CLB was not binding upon the Respondents as they were not a party before the CLB; that

no individual notices were required to be given to the Respondents as the Respondents

were represented by the Hill County Home Owners Welfare Association, a body

representing the interest of all the purchasers; that the Hill County Home Owners Welfare

Association was impleaded as a party by the CLB and the arrangements were made by

the CLB with the consent of the Association; that the State Commission has erroneously

directed the refund of the deposited amounts to the Respondents on the presumption that

the order of CLB had not been complied with and there was no progress in the

construction; that in most of the complaints, Respondents had prayed for handing over of

the possession of the finished flats and in the alternative for refund of deposited amount

but the State Commission by a blanket order has directed the refund of amount to all the

Respondents; that pursuant to the order dated 13.01.11 passed by the CLB, IL&FS Group

had infused Rs.425 crores to meet the commitments of the Hill County Project and the

Developer has no funds to pay the dues either to the Respondents or the Bank; that if the

funds are diverted in making refunds to the Respondents or paying amounts to the Bank,

it would be at the cost of the other customers of the “Hill County Project” as the project

may not be completed due to lack of funds; that the State Commission  erred in observing

that there was no evidence on record to show as to what was the stage of construction

when the additional affidavit of the Developer was on record giving all the details about

progress in construction; that the application filed by the Developer for appointment of

Commissioner to inspect the stage of construction was illegally rejected by the State

Commission; that the delay in completion of the construction and handing over of the

finished flats to the Respondents had occurred due to ‘force majeure’ events which were

beyond the control of the Developer; that the project is near completion  and the new

Promoters will not charge any penal interest on the delayed payment and also not charge

for any escalation in cost of construction.

Ld. Senior Counsel appearing for the Developer further submitted that the State

Commission wrongly proceeded to pass orders in favour of the Banks/Financial

Institutions as if they were complainants before it; that after the Satyam Episode in 2009,

Respondents started defaulting in making the payments of installments to the

Banks/Financial Institutions; that the Developer has been meeting Banks/Financial

Institutions periodically to help the Respondents to arrive at settlement and for

restructuring of their loans; that there was no occasion or reason for the Respondents to

apprehend about fate of the project or to stop making payment of their EMIs to the Bank

and, therefore, there was no justification in shifting Respondents’ liability towards the

Bank to the Developer; that the State Commission has held the Banks/Financial

Institutions deficient in service and, therefore, the Banks/Financial Institutions should

restructure the Respondents’ loan account.SUBMISSIONS MADE IN FIRST APPEAL NOS. 387 TO 400 OF 2012, 783/12, 29/13 AND 14 TO 25 OF 2013 FILED BY THE STATE BANK OF INDIA AND ICICI BANK LTD.

          Financial Institutions other than State Bank of India and ICICI Bank Ltd. have not

challenged the orders passed by the State Commission. The orders passed against the

Financial Institutions other than State Bank of India and ICICI Bank Ltd. have attained

finality. 

Ld. Counsel appearing for the Appellant State Bank of India contends that the

Appellant cannot be fastened with any liability to collect the loan amount from the

Developer and the Respondents cannot be granted liberty not to pay the EMIs to the

Appellant Bank; that it was agreed between the parties that the payment of the sale

consideration of the flats would be made in installments on due dates fixed in the

Agreements of Sale;  that the disbursement of loan amount to the Developer directly was

not linked to the stage of construction and, therefore, the bank was not liable to review the

progress of construction; that as per clause 7 (a) of the tripartite agreement in the event of

cancellation of allotment of schedule property by the Developer, the Developer was liable

to pay all amounts received by it from the Bank on behalf of the Respondents and,

therefore, in the present case as the allotment was not cancelled by the Developer, the

Bank was not liable to recover the loan amount from the Developer; that there was no

“Debtor – Creditor relationship” between the Developer and the Bank and the amounts

were released to the Developer on the basis of duly signed disbursement request forms

submitted by the Respondents and as such it is not open for the Bank to claim the

recovery of the loan amount from the Developer.

Ld. Counsel appearing for the Appellant Bank further  contends that no complaint

under the Consumer Protection Act, 1986 was maintainable against the Appellant Bank as

they had acted under the agreed terms and conditions of the loan agreement; that the

Respondents cannot escape the liability of making the payment of loan to the Banks and

the Banks could not be made liable to collect the loan amount from the Developer; that if

the construction of the project was not completed by the Developer, the Respondents were

at liberty to take appropriate action against the Developer but that cannot be the ground

for the Respondents to seek a declaratory relief or direction not to insist for repayment of

the loan amount; that the State Commission erred in holding that the Appellant Bank did

not try to recover the loan amount from the Developer by invoking  clauses of tripartite

agreement; that the home loan was granted to the Respondents for purchase of the

residential property and the Appellant Bank is legally entitled to recover the dues from the

Respondents.

Ld. Counsel appearing for the Appellant, ICICI Bank Ltd. submits that the

Appellant Bank in all the 12 appeals have disbursed the loan amount based only on the

duly signed disbursement request forms submitted by the customers and there has been no

direct disbursement; that the Appellant Bank has not disbursed the entire loan amount at

one go. SUBMISSIONS MADE ON BEHALF OF THE RESPONDENTS/ COMPLAINANTS IN BOTH SET OF APPEALS

Ld. Counsel appearing for the Respondents/Complainants contends that the

direction to the IL&FS Group to complete the Maytas Hill County Residential Project

Phase I within 18 months of its induction as Promoter by the CLB order dated 13.01.11

would not preclude the individual Respondents from agitating their rights in the

complaints filed by them before the Consumer Fora; that the orders passed by the CLB

were not binding upon the Respondents as they were not member of the Hill County

Home Owners Association which participated in the proceedings before the CLB; that the

Respondents were not issued any individual notice by the CLB; that the order dated

13.01.11 passed by the CLB was not in the nature of a scheme under the provisions of the

Companies Act, 1956 and, therefore, the present batch of Appeals would have to be

decided on its merit; that most of the Respondents had prayed only for refund of their

amounts and the remaining Respondents who sought for alternative reliefs had

categorically given up their claim for finished flats before the State Commission and

restricted their claim for the refund of their amounts; that the State Commission taking

into consideration the fact that the project was nowhere near completion, directed the

Developer to refund the amounts paid by the Respondents; that in case the project is

completed, the Developer can sell the flats in the open market at current market rates

which will fetch more money for the Developer than the amounts at which they were

agreed to be sold to the Respondents herein; that the Respondents are not interested in the

allotment of the flats as they are facing litigations initiated by the Bank under the

provisions of The Securitization and Reconstruction of Financial Assets and Enforcement

of Security Interest Act, 2002, The Recovery of Debts due to Banks and the Financial

Institution Act, 1993 and The Negotiable Instruments Act, 1881;

Ld. Counsel for the Respondents vehemently argued that as per Clause 13 (c) of

the Loan Sanction letter and as per clauses of the tripartite agreement the Appellant Banks

were obligated to release the home loan amounts in phases to the Developer on the basis

of progress of the construction; that the Appellant Banks in collusion with the Developer

disbursed the entire home loan amount along with the contribution of the Respondents

before the commencement of  construction at the project site and even without verifying

the existence of the approved building plans; that as per tripartite agreement executed

between the parties, in the event of cancellation of allotment of flat the developer was

liable to refund the entire loan amount to the Appellant within a period of 60 days but  the

Appellant Banks did not initiate any steps for recovery of the loan amount from the

Developer; that if the Respondents take possession of their respective flats, the Appellants

Bank would immediately initiate proceedings for attachment of the Flats towards

recovery of the alleged dues; that the Appellant Banks cannot have any grievance against

the order dated 27.04.12 passed by the State Commission as their interest has been

adequately protected by granting liberty to recover the entire loan amount from the

Developer;FINDINGS IN FIRST APPEAL NOS. 327 TO 386 OF 2012, 717 TO 720 OF 2912, 781/12 AND 8/13 FILED BY THE DEVELOPER 

M/s. Maytas Properties Ltd. – Developer – entered into individual agreements of sale/construction with each of the individual Respondents. The relevant clause from one of the agreements of sale is reproduced herein for ready reference:-

    “3.     Construction 

(a)    Having received the consideration specified in   Schedule 2, the first party agrees to complete the construction of the apartment in a timely manner by 31st December, 2008 subject to the availability of the steel or other construction material and other causes beyond the control of the first party.

 (b)    The first party shall have a further grace period  of three months.

 (c)    The first party shall be entitled to further periods if the construction is

delayed due to flooding, due to rain, war, earthquake, fire, stay of construction by any Court or authority or any other emergencies including riots and any terrorist activities, etc.; 

(d)    In the event of any further delay beyond time stipulated in Clause 3 (a), 3(b), and 3(c), the first party shall pay the second party an amount of Rs.5 per sq. feet of contracted built-up area for every month or delay or part thereof upto a maximum of 8 months.  After lapse of such extended period of 8 months, the second party can terminate this agreement and seek for immediate refund of total consideration amount paid to the first party i.e. the sale consideration amount and the construction agreement consideration amount alongwith the Corpus Fund as defined vide Clause 1 (c) above and the first party shall refund the amount within 30 days from the date of such termination. “ 

The individual sale agreements entered into by the Respondents specified a payment schedule to

the Developer.  Some of the Respondents paid the entire sale consideration from their own

pocket. Since some of the Respondents after having paid the initial amount towards their

contribution to the Developer, wanted to avail home loans, the Developer approached the various

Banks/financial institutions to render financial assistance to them which is evident from the

following clause of the tripartite agreement entered into between the Developer, the

Banks/Financial Institutions and the Respondents:-“AND WHEREAS the Developer has approached SBI to render financial

assistance for the construction of dwelling units to such of its dwelling unit purchaser/members as may be in need thereof and in consideration of SBI doing so in accordance with its lending policies”

                  

          Banks/Financial Institutions agreed to grant home loans to the Respondents in

terms of the tripartite agreement executed between the Banks, Respondents and

Developer. Some of the relevant clauses from one of the tripartite agreement wherein

Bank/Financial Institution was a party, are reproduced herein for ready reference:-“2.    SBI shall make disbursement of the sanctioned loan by making payments to

the Developer directly on behalf of the borrowers and payment(s) made to the Developer shall be deemed to be payment(s) made to the borrowers and the borrowers shall in each case be liable for the amount of the loan disbursed on his/her behalf to the Developer, as though the same has been disbursed directly to him/her.  It is further agreed by the borrower that SBI shall not be responsible or liable to ensure or ascertain the progress of the construction and mere demands for disbursement would be sufficient for SBI to effect disbursement as aforesaid.

However, SBI at its sole discretion, shall disburse the loan in suitable installments, at the request of borrower/Developer or in suitable installments to be decided by SBI with reference to need or progress of construction, which decision shall be final and binding on the borrower(s)/Developer.  The borrower shall be responsible to follow up with SBI to make disbursement on his/her behalf as per any agreement, payment schedule he/she may have with the Developer.

 Notwithstanding anything to the contrary contained herein, SBI may in its

sole discretion refuse to disburse the loan until; (a) Borrower(s) has/have paid his/her own contribution in full to the Developer (the cost of the dwelling unit less the loan) and the progress and need of the construction justifies the disbursement requested.

 6.             That in the event of cancellation of allotment to the borrower by the Developer for any reason whatsoever the Developer shall refund to SBI only forthwith the entire amounts received from SBI within 60 days subject to clause No. 7 below. The balance if any after adjusting the dues, interest, costs and other amounts recoverable by the SBI, shall be returned to the borrower by SBI.     The Developer herein undertakes not to refund any amount, on any account, under any circumstances to the borrower without the written consent of SBI. 

7(a)       Upon cancellation of the allotment of the schedule property to the borrower for any reason, the Developer shall immediately intimate about the same in writing to SBI.     Upon receipt of such intimation, SBI shall notify the Developer all amounts due to it from the borrower.     In such an event, the Developer shall forthwith pay SBI all amounts received by it from SBI on behalf of the borrower within 60 days of receipt of such statement during which period, the Developer shall pay interest to SBI, at the rate of interest on such amount shall be the same as agreed between the SBI and borrower in the loan agreement. (b)     Further, the Developer hereby agrees that it shall also pay all the remaining amounts due and payable to SBI from the borrower such as defaulted payments, additional interest etc. after deducting reasonable expenses (as agreed by both Developer and SBI) incurred by the Developer from the sale proceeds of the property”

 

After entering into tripartite agreements, the Banks/Financial Institutions

sanctioned the home loans to the Respondents. The loan agreements were executed

between the Banks/Financial Institutions and the Respondents. As per loan agreements,

in case of any delay in the payment of EMI, the borrower was liable to pay an additional

interest and other penal charges.  Relevant clause of one of the sample loan agreements,

entered into by one of the Respondents with the BHW Home Finance Ltd. reads as

under:-“2.6 Delay in payment of EMIs/PEMIIs/Interest/ other dues, etc.(b)     the delay in payment of EMIs/PEMIIs/Interest or any other dues shall render the borrower liable to pay additional interest at the rate of 24 per cent p.a. or at such higher rate as per the rules of BHW Home Finance Ltd. in that behalf as in force from time to tie.  In such event, the borrower shall also be liable to pay incidental charges and costs of BHW Home Finance Ltd. “

 

After the sanction of the loans, both the Banks and the Financial Institutions

disbursed the entire and/or substantial loan amount to the Developer contrary to the terms

of the tripartite agreement which have been extracted hereinabove. Developer after

making some initial construction completely abandoned the project in 2008. One of the

purchasers of the flat filed complaint No.30/09 before the State Commission which was

allowed by it directing the Developer/Opposite Party to refund the deposited amount with

interest @ 12% p.a. from 4.08.08, i.e., the date of payment of the last installment by the

complainant together with compensation of Rs.5 lakh and costs of Rs.5,000/-. Developer,

being aggrieved, filed First Appeal No.189/10 which was disposed of by this

Commission vide order dated 12.08.10.  This Commission modified the order of the State

Commission to the extent that the amount of compensation was reduced from

Rs.5,00,000/- to Rs.1,00,000/-.  Developer challenging the order passed by this

Commission filed SLP (C) No. 26256/10 which was dismissed by the Supreme Court by

its order dated 27.09.10.         

During the pendency of the present proceedings before the State Commission, the

Central Government filed an application before the CLB under the provisions of the

Companies Act, 1956 seeking change of management of the Maytas Properties

Ltd.  During the course of proceedings before the CLB, competitive bidding took place

wherein 28 companies evinced expression of interest to take over the project and the

assets and liabilities of the Developer.  Out of 28 companies which had evinced

expression of interest, 9 responded and out of 9, IL&FS and GVK Group submitted their

concrete proposals.  SBI Capital Market was the Advisor for transaction.  M/s. Maytas

Properties Ltd. submitted Company Application No.24/11 before the CLB On 13.01.11

wherein a prayer was made to induct IL&FS as promoter. The application was unopposed

and was allowed by accepting the entire proposal made in the application, on the same

date.  CLB vide its order dated 13.01.11 permitted IL&FS group to be the new promoter

of the Developer wherein it would acquire 80% in equity share capital by investing Rs.20

lakhs. IL&FS Group was permitted to take over the management control of the Developer

and re-constitute the Board of Directors whereby it would have 4 nominees as Directors

including the Chairman.  IL&FS Group was to mobilize the fund of Rs.150 crores within

a period of three months from the date of order. IL&FS Group was to complete the

Maytas Hill County Residential Project Phase I within 18 months of its induction. It was

required to arrange the finances to complete the project. It was also ordered by the CLB

that the IL&FS Group shall settle all disputes, tax liability and the contractual dues and

other creditors of the Developer. 

During the course of final arguments on 16.05.13 and 22.05.13 in the present

batch of Appeals, the Ld. Senior Counsel, Shri A.M. Singhvi, appearing for the

Appellant/Developer fairly conceded that the CLB proceedings/orders did not bind this

Commission in any manner whatsoever inasmuch as the order of 13.01.11 was not in the

nature of a scheme under the provisions of the Companies Act, 1956.  That this

Commission would have jurisdiction to decide the appeals on their merit by taking into

consideration the overall facts and circumstances.

Ld. Senior Counsel appearing for the Developer sought to contend that the order

dated 13.01.11 passed by the CLB was a consent order and the Respondents herein were

allegedly bound by it as they were represented by the Hill County Owners Welfare

Association. Similar contention raised by the Appellant/Developer before the State

Commission was rejected by it by observing that there was no proof that the Respondents

were members of the said Association or that any notice was served upon the

Respondents individually in order to bind them.  The Respondents had categorically

stated that the Hill County Owners Welfare Association did not represent their

interests.  That till date the Developer had not even bothered to implead the Respondents

before the CLB.  According to the Respondents, the Hill County Owners Welfare

Association was acting in connivance with the Developer as it was present before the

CLB on the first day itself on 13.01.11 when the period of 18 months was given to the

Developer to complete the project. During the pendency of the Appeals, the period to

complete the project has been extended by the CLB till 30.06.13. The project is not

complete as yet.

It may be mentioned here that the Hill County Owners Welfare Association filed

an Interim Application No.3141/13 before this Commission seeking impleadment which

was later on got dismissed as withdrawn reserving liberty with the Association or

members other than the Respondents herein to start independent proceedings.

We do not find any substance in the contention raised by the Ld. Senior Counsel

for the Developer that the order dated 13.01.11 passed by the CLB could be termed as a

consent order on behalf of the Respondents in the present Appeals. The presence of some

advocates on behalf of the Hill County Owners Welfare Association who did not oppose

the prayer made in the C.A.No.24/11 filed by the Developer would have no impact on the

complaints filed before the State Commission. There is nothing on record to show that

the said Association represented the interests of the Respondents herein.  Any consent

given by an advocate on behalf of that Association for the completion of the project

would not tantamount to waiver of the rights of the Respondents.  As per averments made

by the Respondents, the said Association has been acting in connivance and behest of the

Developer and does not represent the interest of the Respondents who had filed their

complaints much prior to the passing of the order by the CLB.  It may be mentioned here

that a majority of the Respondents have formed their own Association which is duly

registered in the name and style of M/s. Maytas Hill County Apartment Buyers

Association.  For the reasons stated above, it is held that the order dated 13.01.11 passed

by the CLB cannot be taken as a consent order on behalf of the Respondents herein.Ld. Senior Counsel appearing for the Developer strenuously contended that the

State Commission erred in directing the Developer to refund the amount contrary to the prayer made in the complaints.  That majority of the Respondents had asked for possession of the finished flats as the main relief and had sought the relief for refund of the amount in the alternative.

 

We do not find any substance in this submission as well. Out of the 66 Appeals,

39 Respondents had prayed for possession of the finished flat as the main relief and the

relief for refund of the amount in the alternative. 27 Respondents herein had prayed for

refund of their amounts only. 39 Respondents who had sought the possession of the flat

as the main relief had categorically given up their claim for finished flats before the State

Commission and confined their relief for the refund of the amount only. State

Commission taking into consideration the fact that the project was nowhere near

completion, directed the Developer to refund the amounts deposited by the Respondents.

We do not find any infirmity in this finding. The project is still not complete.

At the time of admission hearing of the appeals on 10.07.12, the Ld. Counsel

appearing for the Developer had stated before us that out of 11 towers, 9 were near

completion; that the Respondents/ Complainants will be handed over the flats as per

agreement between the parties within a reasonable time at the old rates subject to the

Respondents paying the balance amount; that the Appellant shall suitably compensate the

Respondents for delayed handing over of the possession. On the basis of his submissions,

this Commission passed the following order on 10.07.12.“        Counsel for the appellant states that out of the 11 towers, 9 are near completion; that the complainants/respondents will be handed over the flats as per agreement between the parties within a reasonable time which shall be submitted before the Commission at the old rates subject to the Respondents paying the balance amount; that the appellant shall suitably compensate the respondents for delayed handing over of the possession. Seek time to get firm instructions and put the same on affidavit. Undertakes to file the affidavit before the next date of hearing with an advance copy to the Respondents.”

Subsequently, on a statement made by the Ld. Counsel for the parties that certain developments had taken place after passing of order by this Commission on 10.07.12, the following order was passed on 15.01.13:-

“        Ms.lndu Malhotra, learned senior counsel appearing on behalf of the respondents in majority of the cases has brought to our notice that a similar order passed by the State Commission has been upheld by this Commission in F.A. No.189/2010 against which SLP was filed which has been dismissed.

Learned counsel appearing for the appellant submits that certain developments have taken place after the passing of the order by this Commission; that IL&FS, a new promoter, has stepped in and has taken over the assets and liabilities of the previous promoter; that Company Law Board (CLB) by its order dated 13.1.2011 permitted the IL&FS to step in and take over as a new promoter and develop the property within the time frame of 18 months.

Buildings have not been completed in spite of the lapse of 18 months. New promoter has neither applied for nor got extension of time from CLB.Learned counsel for the appellant submits that in view of the subsequent developments, the decision   rendered   by this  Commission in  the  earlier case is not binding. On 10.7.2012, counsel for the appellant had made a statement before us that out of 11 towers, 9 are near completion; that the complainant/ respondents will be handed over the flats as per agreement between the parties within a reasonable time which shall be submitted before this Commission at the old rates subject to the respondents paying the balance amount; that the appellant shall suitably compensate the respondents for delayed handing over of the possession. Appellant had taken time to file the affidavit before the next date of hearing with an advance copy to the respondents. Pursuant to the undertaking given, appellants have filed the affidavit.Ms.lndu Malhotra, senior counsel appearing for the respondents submits that offer made by the appellant is not acceptable to her clients; that since the property has been put under attachment by the Income Tax Department as per the

statement made in the affidavit filed by the appellant themselves, complainants would not be able to get a clear title to the property; that the complainants are not paying the EMIs as possession has not been given. Complainants had given postdated cheques to the bank. Bank has initiated proceedings under Section 138 of the Negotiable Instruments Act for recovery and under the Securitization Act.

Learned counsel appearing for the appellant submits that the High Court of Andhra Pradesh in Writ Petitions No.9227/2010 and other connected cases, by a common order dated 5.12.2012, in order to protect the interest of the purchasers and revenue, has issued certain instructions, one of which reads as under:-

“In respect of units (villas/ apartments/ plots) where full consideration was received by MPL, sale deeds executed in favour of purchasers and registered and possession of the plots and villas/ apartments (along with undivided) share of land) mentioned in the respective sale deeds has been delivered, we declare that such units and the undivided share in land transferred along with villas/apartments, covered by such registered sale deeds would be free from attachment and the attachment orders passed by the I.T. Department would have no application to them. This position in law is also accepted by the Revenue.”……………………… According to him, said instructions will protect the interest of the respondents as the property would be transferred to them free from any attachment. Counsel for the appellant is directed to supply a copy of the order passed by the CLB, High Court of Andhra Pradesh in Civil Writ Petition No.9227/2010 and other connected cases to the counsel for the respondent. Counsel for the respondent is directed to supply a copy of the proceedings initiated by the banks against the complainants to the counsel for the appellant. Adjourned to 19th March 2013 to enable the counsel for the parties to address their arguments regarding the effect and impact of the order passed by the CLB. Respective counsel appearing for respective banks are also directed to seek instructions. Counsel for the respondent is also directed to supply a copy of the order passed by this Commission referred to above and the order passed by the Supreme Court in SLP No.26256/2010.”

 

          On 20.03.13, Developer filed an application seeking permission to file some

additional documents which was declined on the ground that the additional documents by

way of additional evidence could not be taken at this belated stage. However, the order

passed by the High Court of Andhra Pradesh in W.P.No.9227/10 will be taken note of

while deciding these appeals.

          This Commission on 16.05.13 has passed the following order:- “       Counsel for the appellant states that Company Law Board had extended the time for completion of the project by 30.6.2013. 

Adjourned to 22nd May 2013 to enable the appellant to file an affidavit as to within how much time the project would be completed in all respects including the facilities like water, road, sewerage, electricity, elevators and other such facilities to make the units livable.  

According to the learned counsel for the respondent, respondents had purchased the flats after taking loan from the banks; that the project was to be completed by 2008; that the bank would charge penal interest @ 24% for the delayed EMIs.  Further states that the bank has also started proceedings under

Section 138 of the Negotiable Instruments Act and Securitization and Reconstruction of Financial Assets & Enforcement of Security Interest Act, 2002.

 Counsel for the appellant is directed to state as to what compensation the

appellant shall pay to the respondents for the delay caused in completion of the project which would take care of the interest which the bank will charge from the complainants for the delay in making the payments.

Interim Application No.3141/2013 seeking impleadment is dismissed as withdrawn reserving liberty with the Association or members other than the complainants in these cases to start independent proceedings.

 Adjourned to 22nd May 2013.  Affidavit be filed on or before 20.5.2013 with an advance copy to the

counsel for the respondents. 

          In compliance of our order dated 16.05.13, Developer has filed a detailed affidavit

with regard to the status of construction, delivery of the apartments to the Respondents,

interest to be charged by the Bank in cases where the Respondents have taken bank loans,

Access Roads, Sewerage, Power, water, elevators etc.  It is stated in the affidavit that the

4 towers, i.e. Darjeeling, Khandala, Mussoorie and Nainital have been completed and

notices have been issued from November, 2012 onward to the purchasers for handing

over possession. 5 towers, namely, Dalhousie, Shimla, Ooty, Munnar and Manali are to

be completed within the extended time schedule of end of June, 2013.  With regard to

remaining 2 towers, namely, Kodai and Coonoor, it was decided not to commence the

construction as the number of bookings in these two towers were under 57 out of a total

of 132 apartments. It is further stated that the work of access roads had been completed

for the stages 1 to 4 and the similar work for stage 5 is under progress and expected to be

completed by Ist week of July, 2013. The tar road connectivity to the areas leading to the

apartment towers is under construction and would be completed by end of July, 2013.

Permanent Sewage Treatment Plant works have been commissioned. External drainage,

sewerage and water line works are in progress and will be completed by end of June,

2013. The application for power connection was submitted with APCPDCL in April,

2012 and final orders were issued by the department on May 10, 2013 for laying the cable

to the sub-station of the Appellant for energizing as well as awarding the contract to M/s.

Mamtha Constructions vide their letter dated Lr. NO.CGM(O&M)/

SE(O&M)/F.Tender/D.N. 384/13 dated 10.05.13. The cable laying work is expected to

commence before end of May, 2012. At present, Hyderbad Metropolitan Water Supply

and Sewerage Board is supplying Manjeera water to the residents of Hill Country.  The

Developer has made application for supply of additional quantum of water in February,

2013.  The gas piping infrastructure work will be completed by June 30, 2013. It is further

stated in the affidavit that the provisional club house is operational with indoor facilities

and the permanent club house will be completed by end of July, 2013.

With regard to the home loans taken by the Respondents from the Appellant

Banks/Financial Institutions, it is averred in the affidavit that the Developer has been

meeting the Banks/Financial Institutions periodically to help the Respondents to arrive at

settlement and restricting the payment of loan amount. The Developer filed an

application before this Commission on 19.03.13 offering a compensation package to all

the apartment owners in Hill Country based on fair rental value. However, It has been

submitted in the affidavit that the Developer is not in a financial position and cannot

undertake to meet the financial bank interest commitments of the respondents or make

refunds. The IL&FS Group has infused Rs.425 crores to complete the project and the has

paid substantial income tax dues for the past period in order to negotiate with the Income

Tax Department to lift the ban on registration of conveyance deeds in the Hill County

Project. It is further submitted that if the funds are diverted in making refunds and

making interest payments on behalf of the apartment owners, it would be at the cost of

other customers of the Hill County Project as the project may not be completed due to

lack of funds. Under these circumstances, the Respondents be granted compensation at

the rate of Rs.5/- per sq. ft. per month in proportion to the amounts paid by them for the

entire period of delay till the date of handing over possession except the 18 months

period granted by the CLB to the Developer to complete the project.

          As per Agreements of Sale, the construction of the flats/apartments was to be

completed by the Developer in all the cases on or before 31st December 2008.  Due to

Satyam Computer’s scam in 2009, the development of the project remained at

standstill.  The matter was referred to the CLB which by order dated 13.01.11 induced the

IL & FS Group to complete the project.  IL&FS infused Rs.425 crores to complete the

project.  As per statement made in the Affidavit filed by the Developer on 20.05.13 in

compliance of our order dated 16.05.13 only four towers out of the 11 towers have been

completed. 5 towers, namely, Dalhousie, Shimla, Ooty, Munnar and Manali which were

to be completed by the end of June, 2013 are likely to be completed in the end of July,

2013. It has been decided by the Developer not to construct the remaining 2 towers,

namely, Kodai and Coonoor. The work of providing basic amenities such as water,

electricity, drainage, elevator, gas pipeline, club etc. has yet to be completed by the

Developer. Under these circumstances, the Respondents/Complainants are not interested

to take possession of the flats/apartments. This apart, most of the Respondents by issuing

legal notices to the Developer cancelled the Agreements of Sale as they were not willing

to take possession of the flats. Since there was nothing on record to show the stage of

construction and when the project would be completed, the State Commission rightly

directed the Developer to refund the deposited amount along with interest @ 12% p.a.

from the respective dates of deposit till payment together with compensation of

Rs.1,00,000/- and costs of Rs.10,000/-.

          As per affidavit filed by the Developer, the Developer could not complete the

project within the period of 18 months granted by the CLB. Developer has got the period

to complete the project extended by the CLB upto 30.06.13.  Since the contradictory

statements were being   made   by   the   Ld.  Counsel   appearing   for   the

Developer,   we   asked   the   Developer   to   file   a   fresh   affidavit showing   the stage

of construction.  On perusal of the Affidavit, we are   satisfied   that   the project cannot

be completed till 30.06.13.  As

per Affidavit filed by the Developer, the Developer is not in a position to complete the

project upto 30.06.13. Developer has sought further time upto 31.07.13 to complete the

project as the basic amenities such as water, electricity, drainage, elevator, gas pipeline

etc. have yet to be provided by them. Since the project is not complete as on the date, we

cannot direct the Respondents to take the possession of the flats. For the reasons stated

above, we endorse the finding as well as direction given to the Developer by the State

Commission to refund the amount to the Respondents.

          The Developer’s primary contention made before us is that the order of refund

passed by the State Commission is unsustainable and more so in the present

circumstances when the construction is already completed. The affidavit filed by the

Developer on 20.05.13 reveals that a substantial part of the work, even according to the

Developer, is still going on.  The affidavit, on the face of it, does not inspire any

confidence and rather makes it abundantly clear that the apartments are not habitable.

Section 455 of the Hyderabad Municipal Corporation Act, 1955 mandates that after

completion of the work in a building, the builder should intimate the Municipal

Corporation in writing about such completion in the prescribed form.  The Authority after

inspection, if it deems fit, would grant a completion certificate and no person shall be

allowed to occupy a building until a completion certificate is issued.  This would be

possible only if the entire work is complete. It is pertinent to mention here that Section 4

(4) of the Andhra Pradesh Apartments (Promotion of Construction and Ownership) Act,

1987 mandates that an apartment can be transferred by the Developer only after obtaining

a Completion Certificate and Certificate of fitness for occupation from the local

authorities.  In view of the mandatory provisions of law, the claim of the Developer that

the flats are ready and would be handed over to the Respondents by June, 2013 is

factually incorrect. Respondents are not interested in allotment of flats as the

Banks/Financial Institutions are to recover the loans on the terms and conditions of the

original agreement with interest for the period of six years when there was no

construction. If the Respondent are compelled to take the flats, they would be in a state of

debt to the Banks/Financial Institutions and would be required to pay interest/penal

interest etc. Further, Respondents are facing litigations initiated by the Banks under the

provisions of the Securitization and Reconstruction of Financial Assets and Enforcement

of Security Interest Act, 2002; The Recovery of Debts due to the Banks and Financial

Institutions Act, 1993 and The Negotiable Instruments Act, 1881. Assuming that the

Respondents take possession of their respective flats, the Banks would immediately

initiate proceedings for attachment of the flats towards recovery of the alleged dues. It is

evident that in the event of the Respondent’s taking over the possession of the flats, they

would have to pay huge amounts to the Banks as per the penal provisions for default in

the loan agreements, which cannot be repaid by them even after selling the flat. If the

Respondents take possession of the flats, they would be left with huge debts to the Banks

and continue to litigate in various other Courts for no fault of theirs.

The 66 Respondents in the present batch of Appeals comprise less than 10% of

the total flat purchasers in the Developer’s project. It would not make any difference to

the Developer, if the Respondents are refunded the amount paid by them.   The

Developer can sell the finished flats in the open market at current rates and fetch more

money than the amounts at which they agreed to sell the flats to the Respondents herein.

This apart, the earlier judgment on the same/similar facts in Complaint Case

No.30/09 based on which the State Commission has allowed the present complaints, was

upheld by this Commission with slight modification.  SLP filed by the Developer against

the said order was dismissed by the Supreme Court. The earlier judgment is a binding

precedent which has been upheld upto Supreme Court. We respectfully follow the same.

Complaint No.30/09 was filed against the Developer on the same facts.  The only

intervening factor is the order dated 13.01.11 passed by the CLB which according to us

makes no difference as the Developer remains the same.  By order dated 13.01.11, CLB

had allotted the preferential shares to the IL&FS by virtue of which it has controlling

interest in the company.  The liability of the Developer to the Respondents remains the

same. The judgment rendered by this Commission in First Appeal No. 189/10 in

complaint No.30/09 which had been upheld by the Supreme Court, is a binding precedent

and as stated above we are bound by the same.

Even as on today, the flats are not complete.  Developer has not obtained the

Completion Certificate or Certificate of fitness for Occupation. Under these

circumstances, Respondents cannot be ordered to take possession of the unfinished flats

without Completion Certificate and Certificate of fitness for Occupation issued by the

local authorities.

          For the reasons stated above, we do not find any merit in the Appeals filed by the

Developer and dismiss the same with no order as to costs.FINDINGS IN FIRST APPEAL NOS. 387 TO 400 OF 2012, 783/12, 29/13 AND 14 TO 25 OF 2013 FILED BY THE STATE BANK OF INDIA AND ICICI BANK LTD.

          We need not recapitulate the facts again. Relevant clauses of the tripartite

agreements wherein the Appellant, State Bank of India/ ICICI Bank Ltd. was a party, are

reproduced as under:-.“2.    SBI shall make disbursement of the sanctioned loan by making payments to the Developer directly on behalf of the borrowers and payment(s) made to the Developer shall be deemed to be payment(s) made to the borrowers and the borrowers shall in each case be liable for the amount of the loan disbursed on his/her behalf to the Developer, as though the same has been disbursed directly to him/her.  It is further agreed by the borrower that SBI shall not be responsible or liable to ensure or ascertain the progress of the construction and mere demands for disbursement would be sufficient for SBI to effect disbursement as aforesaid. However, SBI at its sole discretion, shall disburse the loan in suitable installments, at the request of borrower/Developer or in suitable installments to be decided by SBI with reference to need or progress of construction, which decision shall be final and binding on the borrower(s)/Developer.  The borrower shall be responsible to follow up with SBI to make disbursement on his/her behalf as per any agreement, payment schedule he/she may have with the Developer.           Notwithstanding anything to the contrary contained herein, SBI may in its sole discretion refuse to disburse the loan until; (a) Borrower(s) has/have paid his/her own contribution in full to the Developer (the cost of the dwelling unit less the loan) and the progress and need of the construction justifies the disbursement requested. 6.             That in the event of cancellation of allotment to the borrower by the Developer for any reason whatsoever the Developer shall refund to SBI only forthwith the entire amounts received from SBI within 60 days subject to clause No. 7 below. The balance if any after adjusting the dues, interest, costs and other amounts recoverable by the SBI, shall be returned to the borrower by SBI.     The Developer herein undertakes not to refund any amount, on any account, under any circumstances to the borrower without the written consent of SBI. 7(a)       Upon cancellation of the allotment of the schedule property to the borrower for any reason, the Developer shall immediately intimate about the same in writing to SBI.     Upon receipt of such intimation, SBI shall notify the Developer all amounts due to it from the borrower.     In such an event, the Developer shall forthwith pay SBI all amounts received by it from SBI on behalf of the borrower within 60 days of receipt of such statement during which period, the Developer shall pay interest to SBI, at the rate of interest on such amount shall be the same as agreed between the SBI and borrower in the loan agreement.

 (b)     Further, the Developer hereby agrees that it shall also pay all the remaining amounts due and payable to SBI from the borrower such as defaulted payments, additional interest etc. after deducting reasonable expenses (as agreed by both Developer and SBI) incurred by the Developer from the sale proceeds of the property”

 

          Pursuant to the tripartite agreements, the Appellant Bank entered into the loan

agreements with the Respondents herein and sanctioned the home loans. Thereafter, the

Appellant Bank issued sanction letters. As per clause 13 (c) of the Loan Sanction Letter,

the Appellant Bank was obligated to release the loan amount to the Developer directly on

the basis of verification of the stage and nature of the construction. In terms of Section 5

of the Andhra Pradesh Apartments (Promotion of Construction and Ownership) Act,

1987, the Appellant Bank was under an obligation not to release more than 20% of the

sale consideration amount as advance to the Developer before commencement of the

construction.  The relevant Section 5 reads as under:- “   A promoter who intends to transfer any apartment shall before, accepting any

sum of money as advance payment or deposit, which shall not exceed twenty percent of the price, enter into a written agreement of sale with the intending transferee and the same shall be registered as a document compulsorily registerable under clause (b) of sub-section (1) of Section 17 of the Registration Act, 1908.”          The Appellant Bank disbursed the entire loan amount to the Developer even before

the commencement of construction at the project   site  contrary  to   the   provisions of

the Tripartite Agreement The Appellant Bank could not have disbursed th loan amoun

without taking proper  care   and  caution  to find  out  about  the  existence/start of

construction of  the  flats  for which  loans  were  sanctioned. Du to the lack of

supervision on part  of  the  Appellant  Bank, the  Developer   diverted  the  funds  of

the  project  to  the  Satyam  Computers.  The  Appellant Banks having acted contrary to

the terms of the tripartite agreement, its own sanctioned terms and provisions of Section 5

of the Andhra Pradesh Apartments (Promotion of Construction and Ownership) Act, 1987

by disbursing the entire loan amount without any construction being made, cannot be

absolved of their responsibility

The tripartite agreements executed between the Bank, Developer and the

Respondents contemplate that in the event of cancellation of allotment of flat, the

Developer was liable to refund the entire loan amount to the Appellant Banks within 60

days. Respondents terminated the contracts by filing the complaints. The Appellant

Banks in spite of having notice of termination of the contracts did not take any steps for

recovery of the loan amount from the Developer. The contention of the Bank that as per

tripartite agreements the Bank was bound to review the progress of the construction only

to protect its own interest otherwise no duty was cast upon it does not hold water and

appears to be a fallacious argument and a lame excuse. The progress of construction and

the manner in which the loan amount was to be disbursed by the Bank were inter-

connected issues and the Appellant Bank being the home loan banker who has lien over

the flats should have acted cautiously and taken reasonable care to ensure that its money

is safe and secure. Moreover, the Appellant Bank cannot have any grievance against the

order passed by the State Commission directing it to recover the loan amount from the

Developer as the interest of the Bank has been adequately protected by the State

Commission.

          For the reasons stated above, we do not find any merit in the Appeals filed by the

Banks and dismiss the same with no order as to costs.

The developer is directed to comply with the orders passed by the State

Commission within a period of six weeks from today failing which the Respondents

would be at liberty to execute the decree.

 Registry is directed to refund the sum of Rs.35,000/- deposited by the Developer

as statutory deposit in each case along with accrued interest.

…………….. . . . . .                                                 (ASHOK BHAN J.)

PRESIDENT                                                . . . . . . . . . . . . . . . .

(VINEETA RAI)MEMBER 

YD/*

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

REVISION PETITION NO.   2569 OF 2012 (From the order dated 18-05-2012 in First Appeal No. 1147 of 2008 of the State Consumer Disputes Redressal Commission, Punjab)

1.           MALKIAT SINGH S/o Shri Karam Singh R/o Flat No. 521, 6th Floor, Housefed Flats Complex, Shaheed Bhagat Singh Nagar, Block-E, Ludhiana - 141013 Punjab

 ....   Petitioner/Complainant

Versus

1. SHAHEED BHAGAT SINGH NAGAR, HOUSEFED COMPLEX, CO-OPERATIVE HOUSR BUILDING SOCIETY LTD. Through President, Block-E, Ludhiana Punjab

2. The Managing Director, Housefed Punjab, SCO No. 150-152, Sector 34-A, Chandigarh Punjab

3. The Registrar, Co-Operative Societies, Chandigarh Punjab

... Respondents

BEFORE:

 

HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

HON’BLE DR. B.C. GUPTA, MEMBER

 

For the Petitioner            :      In person

                                                 

PRONOUNCED ON           11 th       JULY, 2013

O R D E R 

 PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

1.      This revision petition has been filed by the petitioner against impugned order dated 18-05-

2012 passed by the learned State Consumer Disputes Redressal Commission, Punjab (in short,

‘the State Commission’) in Appeal No. 1147 of 2008 – Malkiat Singh Vs.

The Shaheed Bhagat Singh Nagar,Housefed Complex, Co-operative House Building Society Ltd.

& Ors., by which appeal filed by the petitioner was dismissed and order of the District

Forum dismissing the complaint, was upheld.

2.      Brief facts of the case are that complainant/petitioner was allotted flat no. 521 on 6 th floor

by opposite party no. 1/respondent no. 1 and possession was delivered to the petitioner on 30-04-

2002 after receiving entire amount of Rs.11.90 lakhs. Respondent no. 1 charged additional

amount of Rs.1,000/- for creation of common fund which was to be used or maintenance of

common services/area.  It was also mentioned in the Brochure that monthly instalments as

decided by opposite part no. 1 shall be payable by the members of this society for maintaining,

regulating common areas and services.  Petitioner was under impression that respondent no. 1

shall provide all amenities.  It was further alleged that there was seepage of water in the lintel

roof, which was brought to the notice of opposite parties.  Many cracks developed in the

walls.  It was further alleged that respondent no. 1 was to provide two lifts and generator set for

the use of allottee members.  Complainant never withheld monthly payment of maintenance but

resolution was passed by opposite party no. 1 that in case flatownerfailed to pay monthly water

supply charges, his connection would be disconnected and complainant’s water connection

would be discontinued.  It was further alleged that only one lift was provided against provision

of two lifts. Alleging deficiency on the part of respondents, complainant filed complaint before

District Forum.  Complaint was not admitted against respondents’ no. 2 & 3.  Opposite party no.

1/respondent no. 1contested complaint before District Forum denied allegations of deficiency

and further submitted that complaint is time barred and complainant himself is in arrears of

maintenance charges, hence complaint be dismissed. Learned District Forum after hearing both

the parties, dismissed complaint against which appeal filed by the petitioner was dismissed by

learned State Commission vide impugned order against which this revision petition has been

filed.

3.      Heard petitioner in person at admission stage and perused record.

4.      Learned petitioner submitted that as per Brochure, two lifts, generator set has not been

provided and as there are many defects in the construction, which have not been removed by

opposite parties; even then learned District Forum has committed error in dismissing the

complaint and learned State Commission further committed error in dismissing the appeal, hence

revision petition be admitted.

5.      Admittedly,  possession   was   delivered  to   the   petitioner on 30-04-

2002  whereas  complaint  was   filed   before District Forum on 08-09-2005. Complaint should

have been filed within a period of two years from getting possession of the flat regarding any

defect in the construction or deficiency in the services.  As complaint has been filed after almost

three years and four months and no application has been moved for condonation of delay,

complaint being time barred is not maintainable and learned District Forum has not committed

error in dismissing the complaint and learned State Commission has not committed any error in

passing the impugned order.

6.      As far as defects in the flats are concerned, as per delivery possession receipt, flat was in

good condition.  In such circumstances, it cannot be inferred that   construction   of   flat

was   defective.    As far as providing two lifts and   generator   set,   petitioner could not place

any document   to  substantiate  that  respondent was to provide two lifts and generator  set

for  inhabitants of   the building.   Learned State

Commission   and   District   Forum   rightly   observed that   as petitioner

himself   was   defaulter   in   making   payment   of maintenance charges, petitioner

cannot   claim benefit   of service of lift, etc. to be provided by the respondent.  It cannot be

expected from the respondent to maintain all the services without contribution towards

maintenance charges being made by flat owners and in such circumstances, petitioner is not

entitled to any relief.

7.      We do not find any illegality, irregularity or jurisdictional error in the impugned order,

which calls for any interference and revision petition, is liable to be dismissed at admission

state. 

8.      Consequently, revision petition filed by the petitioner is dismissed at admission stage with

no order as to costs.

                .……………….………………

(K.S. CHAUDHARI, J)

PRESIDING MEMBER 

.……………….………………

(DR. B.C. GUPTA)

MEMBERaj

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION4 NEW DELHI        

 REVISION PETITION NO.   1051 OF 2013

 (From the order dated 04.01.2013 in MA/11/76 in Appeal No. A/11/169 of the Maharashtra State Consumer Disputes Redressal Commission, Circuit Bench, Nagpur)

 

 Nirmal Land Developers & Builders Through its Proprietor Shri Mahendra Jayram Borkar Aged about 49 years Occ – Business R/o Nirmal Colony, Nara Road, Nagpur Maharashtra

…Petitioner/Opp. Party (OP)

                                      VersusRameshchandra Gopalrao Pande R/o Block No. AG-1 Rahate Colony, Nagpur, Maharashtra

…Respondent/Complainant

 

BEFORE

     HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

     HON’BLE DR. B.C. GUPTA, MEMBER

 For the Petitioner               :     Mr. Arvind S. Waghmare, Advocate

PRONOUNCED   ON     22 nd   July,     2013

 O R D E R  PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

         This revision petition has been filed by the petitioner/opposite party against the order dated 04.01.2013 passed by the Maharashtra State Consumer DisputesRedressal Commission, Circuit Bench, Nagpur (in short, ‘the State Commission’) in Appeal No. A/11/169 – Nirmal Land Developers & Builders Vs. RameshchandraGopalrao Pande by which, appeal filed by the petitioner was dismissed as barred by limitation.

2.       Complainant/respondent filed complaint before District Forum with a prayer to direct

OP/petitioner to execute sale deed of plot Nos. 57 & 68 in favour of the complainant and pay

Rs.55,000/- as compensation towards harassment. Learned District Forum after hearing both the

parties allowed complaint vide order dated 24.11.2009 and directed OP to execute sale deed and

pay Rs.5,000/- as compensation and Rs.1,000/- as litigation expenses.  Appeal filed by the

petitioner was dismissed by learned State Commission, as it was barred by 15 months.

3.       Heard learned Counsel for the parties at admission stage and perused record.

4.       Petitioner filed appeal along with application for condonation of delay before the learned

State Commission and submitted that as soon as the impugned order dated 24.11.2009 was

passed by District Forum, petitioner approached to the concerned Clerk of the Forum and asked

about the copy of the order and petitioner was asked by the Clerk that the copy will be served at

his registered address and asked him to wait.  Petitioner waited for two months, but copy was not

received.  Again in March 2010, petitioner approached to the Clerk and Clerk shown him

dispatch entry about the copy of the order. It was further alleged by the petitioner that he waited

till October, but did not receive copy of the order.  After that, he suffered typhoid and remained

bed ridden for two months and later on applied for certified copy on 16.3.2011 and received it on

18.3.2011 and appeal was filed on 25.3.2011. 

5.       Perusal of application clearly reveals that petitioner was aware of the order dated

24.11.2009, but he waited for two months for copy of the order and apparently after four months

in March 2010, he again contacted Clerk of the Forum, who had shown him dispatch of the copy

of the order, but even then he waited till October, 2010 and did not apply for certified copy of the

order as free copy was not received by him.  He has not filed any document pertaining to

suffering by typhoid.  As per his application, he remained bed ridden for two months on account

of typhoid meaning thereby from November to December, 2010, but he did not apply for

certified copy in January, 2011, but applied on 16.3.2011 and there is no explanation for delay in

applying certified copy of the order of District Forum.  No satisfactory explanation has been

given by the petitioner for condonation of delay and learned State Commission has not

committed any error in dismissing appeal as barred by 15 months.

6.       As there is inordinate delay of 15 months, this delay cannot be condoned in the light of the

judgment passed by the Hon’ble Apex Court and the National Commission in (1) (2010) 5 SCC

459 – Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation

and Anr.; (2) (2012) 3 SCC 563 – Office of The Chief Post Master General and Ors. Vs. Living

Media India Ltd. and Anr. and (3) 2012 (2) CPC 3 (State Commission)

– Anshul AggarwalVs. New Okhla Industrial Development Authority.

7.       We do not find any illegality, irregularity or jurisdictional error in the impugned order and

revision petition is liable to be dismissed.

8.       Consequently, revision petition filed by the petitioner in Appeal No. A/11/169

– Nirmal Land Developers & Builders Vs. Rameshchandra Gopalrao Pande is dismissed at

admission stage.  There shall be no order as to costs.        

                             ..………………Sd/-……………

( K.S. CHAUDHARI, J)

 PRESIDING MEMBER 

 

..……………Sd/-………………

( DR. B.C. GUPTA )

 MEMBER 

k

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

REVISION PETITION NO. 3265 OF 2011

(Against the order dated 22.07.2011 in Appeals No.5000/2010, 534/2011 & 1156/2011 of the Karnataka State Consumer Disputes Redressal Commission, Bangalore) 

B.T. Shivaprasad S/o Shri B.S. Thippeswamy Residing at No.407, 14th Cross 2nd Stage, 2nd Phase, West of Chord Road Mahalakshmipuram Bangalore-560086

…      Petitioner

  Versus

 President/Vice President/Secretary Vyalikaval House Building Cooperative Society Ltd. No.100, 11th Cross, Malleswaram Bangalore-560003 

…      Respondent

 

BEFORE:

HON'BLE MRS. VINEETA RAI, PRESIDING MEMBER

HON’BLE MR. VINAY KUMAR, MEMBER 

For the Petitioner         :    Mr. B.T. Shivaprasad, Petitioner-in-person

For the Respondent    :    NEMO 

Pronounced : 23 rd   July, 2013  

ORDER 

PER VINEETA RAI, PRESIDING MEMBER1.      Petitioner-in-person was present on 18.07.2013 when the orders were reserved in this

matter.  Counsel for Respondent, who was present on the last date of hearing i.e. on 02.05.2013

and was aware that the case was to come up on 18.07.2013, was not present.

2.      Briefly stated, the facts of the case are that the Petitioner/Complainant had become a

member of the Opposite Party/Society, Respondent herein, with a view to own a residential site

and had paid a sum of Rs.21,050/- on various dates from 21.04.1985 to 23.01.1999.  The total

value of the site was Rs.54,000/-. There was no progress in the allotment of the site and also

despite contacting the Opposite Party/Respondent through letters there was no response.  Being

aggrieved Petitioner/Complainant filed a complaint before the District Forum. District Forum

directed the Opposite Party/Respondent to pay Rs.20,900/- to the Petitioner/Complainant with

interest at the rate of 12% per annum from the respective dates of payment till actual payment as

also compensation of Rs.2,00,000/- towards sufferings and deprivation of the site in Bangalore

alongwith Rs.5000/- as costs.  In the cross-appeals filed before the State Commission by both the

Petitioner/Complainant and the Opposite Party/Respondent, the State Commission modified the

order of the District Forum by setting aside the direction as to compensation of Rs.2,00,000/- by

observing as follows :-

“10.   This Commission in the earlier cases has taken a decision following the

decision of the Hon’ble Supreme Court and the National Commission that the

complainants are not entitled for both compensation and interest.  The District

Forum while allowing the complaint of the complainant has directed to refund the

amount of Rs.20,900/- with 12% (interest) pa from the date of respective dates of

payment till actual payment.  But the complainant in his appeal No.5000/10

sought for enhancement of both compensation and interest.”

 

The State Commission further directed that interest be enhanced from 12% to 18% per annum on

the refunded amount of Rs.20,900/- alongwith payment of costs of Rs.5000/-.

3.      The present appeal has been filed by the Petitioner seeking restoration of compensation of

Rs.2,00,000/- awarded by the District Forum.

4.      We have heard the submissions made by the Petitioner-in-person and have also gone

through the evidence on record.  We agree with the order of the State Commission that the

Petitioner/Complainant is not entitled to both compensation and interest.  This view has been

taken by us in Mohit Bindal V. Haryana Urban Development Authority (First Appeal No. 173 of

2008) and New India Assurance Co. Ltd. V. Tauseful Hassan & Anr. (Revision Petition No. 91

of 2009).  In the latter case, this Commission had observed as follows :- 

“The complainant cannot be given double benefit of compensation as well as

interest on the insured amount.  Interest be taken as by way of compensation.”

 

Therefore, the order of the State Commission is in accordance with our own orders on the

subject. 

5.      In view of the above, we see no reason to interfere with the order of the State Commission,

which is upheld.  The revision petition is dismissed.  Opposite Party/Respondent is directed to

refund the sum of Rs.20,900/- with interest at the rate of 18% per annum from the respective

dates of payment till actual payment with Rs.5000/- as costs within a period of four weeks from

the date of receipt of copy of this order.  Registry is directed to send a copy of this order to the

Opposite Party/Respondent immediately.    

                                                Sd/-

(VINEETA RAI)

PRESIDING MEMBER 

Sd/-

(VINAY KUMAR)

MEMBER

 Mukesh   

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI        

REVISION PETITION NO.   2788 OF 2012 From the order dated 17.4.2012 in M.A. No. 170/2011 in Appeal No. 91/2011 of the H.P. State Consumer Disputes Redressal Commission, Shimla)

 

The Managing Director, H.P. State Cooperative Housing Federation, Shimla – 171 009

… Petitioner/Complainant

                                         Versus1.Shri Gian Chand S/o Sh. Sohnu Ram,   Ward No. 1, Krishna Nagar,’   Hamirpur

 2.The Hamirpur Cooperative House Building Society Ltd., Hamirpur, through its President

… Respondents/Opp. Parties (OP)

 BEFORE

  HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

 HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioner                       :         Mr. H.S. Upadhyay, Advocate

For the Respondent No. 1          :         Mr. Santosh Kumar, Advocate

                                                         Mr. Sunil Kumar, Advocate

For the Respondent No. 2          :         Ex-parte                                  

PRONOUNCED ON         23 rd     July ,     2013

O R D E R

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER       

This revision petition has been filed by the petitioner/complainant  against the order dated

17.04.2012 passed by the H.P. State Consumer DisputesRedressal Commission, Shimla (in short,

‘the State Commission’) in M.A. No. 170/2011 in Appeal No. 91/2011  – The Managing

Director, H.P. State Co-Op. Housing Federation Vs. Gian Chand  & Anr. by which, appeal was

dismissed as barred by limitation.

 2.      Brief facts of the case are that learned District Forum allowed complaint of the complainant/Respondent No. 1 vide order dated 2.8.2001 and directed OP-1 Society to handover possession of the house to the complainant after receiving balance amount.  In Execution Proceeding 15/2007 on account of compromise between the parties, Execution Petition was disposed of as partly satisfied against which, appeal filed by the petitioner was dismissed by learned State Commission vide impugned order against which this revision petition has been filed.

 

3.      None appeared for Respondent No. 2.  Heard the petitioner and Respondent No. 1 and

perused record.

4.      Learned Counsel for the petitioner submitted that learned State Commission has committed

error in dismissing appeal being barred by limitation, as delay occurred due to fault of Advocate;

hence, impugned order be set aside and revision petition be allowed.  On the other hand, learned

Counsel for the Respondent No. 1 submitted that order passed by leaned State Commission is in

accordance with law; hence, revision petition be dismissed.

 5.      In application for condonation of delay filed before the State Commission, petitioner submitted that appeal could not be filed in time, as their Counsel did not inform about the order.  Further, it was submitted that petitioner came to know about the order only, when it received copy of the order dated 3.8.2010 on 3.9.2010. Then, petitioner issued letter to the Counsel on 19.10.2010 and called his explanation and Counsel assured that he will get the order modified, but as he had not taken any steps; hence, delay of 7 months was caused in filing appeal. 

6.      There appears to be no explanation at all for condonation of delay. When the petitioner

came to know about the District Forum’s order on 3.9.2010, petitioner should have filed appeal

immediately before the State Commission, but appeal has been filed after a delay of 7 months

that too without any affidavit of the Counsel, who orally assured to get the order modified.  This

application has also not been supported by letter calling explanation of the Advocate.  Law does

not permit review of order by District forum or State Commission and in such circumstances

instead of waiting for the Counsel to get the order modified from the District Forum; petitioner

should have filed appeal immediately.  As appeal has been filed after 7 months, learned State

Commission has not committed any error in dismissing application for condonation of delay in

turn dismissing appeal being barred by limitation.

7.      As there is inordinate delay of 7 months, this delay cannot be condoned in the light of the

following judgment passed by the Hon’ble Apex Court.

8.      In R.B.   Ramlingam  Vs. R.B.   Bhavaneshwari  2009 (2) Scale 108, it has   been observed:          “We hold that in each and every case the Court has to examine whether

delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.”

 

9.        In Ram   Lal   and   Ors .  Vs.  Rewa   Coalfields     Ltd ., AIR  1962 Supreme Court 361, it

has been observed;

“It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.”

         

 10.    Hon’ble Supreme Court after exhaustively considering the case law on the aspect  of condonation of delay observed in Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation reported in (2010) 5 SCC 459 as under;

“We have considered   the respective    submissions.  The law of limitation is founded on public policy. The   legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that   they    do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same   time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time.”       

 11.    Hon’ble Apex Court in (2012) 3 SCC 563 – Post Master General &   Ors .   Vs. Living Media

India Ltd. and   Anr . has not condoned delay in filing appeal even by Government department and

further observed that condonation of delay is an exception and should not be used as an

anticipated benefit for the Government departments.

 12.    Hon’ble Apex Court in 2012 (2) CPC 3 (SC) – Anshul   Aggarwal  Vs. New   Okhla   Industrial Development Authority  observed as under:

“It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986, for filing appeals and revisions in Consumer matters and the object of expeditious adjudication of the Consumer disputes will get defeated, if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras”.

 Thus, it becomes clear that there is no reasonable explanation at all for condonation of inordinate delay of 7 months. Revision petition is liable to be dismissed on the ground of delay alone. 

13.    In the light of aforesaid judgments, revision petition is liable to be dismissed, as we do not

find any infirmity, illegality, irregularity or jurisdictional error in the impugned order.

 

14.    Consequently, the revision petition filed by the petitioner is dismissed at admission stage

with no order as to costs. 

 ..……………Sd/-………………

( K.S. CHAUDHARI, J)

 PRESIDING MEMBER  

..…………Sd/-…………………

( DR. B.C. GUPTA )

 MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

   FIRST APPEAL NO. 473 OF 2012(Against the order dated 25.4.2012 in CCSR 1733 of 2012 of the State Commission, Andhra Pradesh) 1. A.S.Chakravarthy S/o A.S. Srinivasan 2. A. Sandhya Chakravarthy W/o  A.S. Chakravarthy Both Residents of H.No.12-10-586/66/A Opp. Amaravathi Grammar School Medi Bavi, Sitafalmandi Secunderabad- 500061

...... Appellants  Versus M/s. Asvasidh Homes Builder & Developer Plot No.153, MLA’s Colony Road No.12, Banjara Hills, Hyderabad- 500034 (Represented by its Managing Partners, 1. Mr. Varun Reddy Kancharla S/o Late K. Anil Kumar 2. Mr. Siddharth Reddy S/o Late K. Anil Kumar

.....Respondents  BEFORE:HON’BLE MR. VINAY KUMAR, PRESIDING MEMBER         For the Appellants              : Mr. Hitesh Kumar Saini, Advocate  PRONOUNCED ON:      1 August  2013                   

ORDER

 

PER MR. VINAY KUMAR, MEMBER

          The complaint of the present appellants against respondent/M/s. Asvasidh Homes and its

managing partners was dismissed by the AP State Consumer Disputes Redressal Commission in

CCSR/1733/2012.  The State Commission came to a conclusion that the complaint was not

maintainable before it and therefore directed the same to be return to the Complainants.  The

decision is sought to be challenged in the present proceedings. 

2.      Challenging the order of the State Commission, the Complainants filed a revision petition

under Section 21 B of the Consumer Protection Act, 1986, terming it as a review petition.  The

same has been admitted as an appeal before this Commission and taken up for consideration

under Section 19 of the Consumer Protect Act, 1986. 

3.      The appeal has been filed with delay of 59 days for which an application

for condonation has subsequently been filed on 25.2.2013. The application has been

perused.  The main explanation as contained in para 3 thereof is:-“It is humbly submitted that the Petitioners/appellants have been

representing themselves in person before this Hon’ble Commission and as also before the State Commission.  That since the services of an Advocate were not utilized by the appellants as a result of the same the appellants had wrongly preferred a Revision Petition instead of a First Appeal.  Thus, an unintentional delay was caused in filing of the present First Appeal which was initially filed as a Revision Petition presuming the limitation period to be 90 days.”

 

In the circumstances of the case, the above explanation is accepted and delay of 59 days is

condoned. 

4.      While deciding to return the complaint, the State Commission has taken into consideration

the nature of relief sought by the Complainant and the fact that the genesis of the complaint lies

in purchase of a flat from the OP under a registered sale deed of 30.10.2010.  Six months later,

the consumer complaint was filed before the State Commission on 28.4.2012. The State

Commission has therefore observed that :-“Considering the nature of the claim and the fact that the title of the flat has

already been conveyed to the complainant, and he having been in possession of the property, he can seek rectification of defects and even compensation for any deficiency of service.  We fail to understand how he can seek refund of sale consideration and compensation.  More so when title as well as possession was transferred in his favour, under guise of complaint recoursing to the provisions of the Consumer Protection Act filed the complaint the reliefs of which can be granted by Civil Court, even assuming he can maintain all these claims in a suit, obviously in order to get over payment of court fee etc.  Therefore, we are of the opinion that the complaint is not maintainable before this Commission, and the complainant is directed to approach appropriate court for the reliefs.”

 

5.      The appellant/Complainant has challenged the order of the State Commission on the ground

that he is a consumer ‘under the law’. Therefore, it is alleged that without hearing both sides the

State Commission could not have come to a conclusion that the matter needed to be decided by

the civil court. However, neither the appellant nor the appellant’s counsel have made any attempt

to substantiate this claim with reference to the provision in Section 2 of the Consumer

Protection  Act, 1986.  Learned Counsel for the appellant relied upon the decision of this

Commission in RP No. 4002 of 2011 in M/s. Daddys Developers & Builders Vs. Sri

S. Kanan decided on 4.4.2012.  and argued that the State Commission should have directed the

OP/respondent to give an alternative flat in replacement of the defective one.

 6.     From a perusal of the above decision it is seen that the respondent S.Kanan, had entered

into an agreement with the petitioner/Daddy’s Developers for purchasing a plot and construction

of a villa on it. The sale deed of the plot was signed on 31.3.2005 and the respondent also paid

about Rs.25,00,000/- as sale consideration and for construction of a residential flat thereon.  It

was the case of the respondent that the petitioner agreed to hand over the property to him on

26.12.2007 and both the parties agreed to certain specifications to be followed in the

construction. Allegedly, the petitioner failed to adhere to the specifications which led to the rain

water flowing into the premises during the monsoon. In the month of August 2008, water

stagnated upto the height of about 3 feet over and above the ground level.    Having failed to

obtain any solution from the developers, he filed a complaint before District Forum, with the

prayer to direct the OP to provide an alternative Villa in the same layout and also to pay

compensation.  His complaint was allowed and the District Forum held that:-

“OP is directed to provide alternative Villa and execute the registered Sale Deed of the same in favour of the Complainant in the same layout with same measurement within 60 days from the date of this Order.  After taking the possession of the alternative Villa, Complainant has to reconvey the subject Villa in favour of the OP.”

 

The above view taken by the District Forum was upheld by the State Commission and

confirmed by the National Commission in the decision cited above.

7.      Per contra, the case of the appellants in the present proceedings arises from a very different

set of facts. A perusal of the complaint filed before the State Commission shows that the entire

matter arises from the registered sale deed of 30.10.2010 for purchase of a Flat No.105

in Asvasidh Abode. The complaint has listed 14 deviations from the approved plan and 11

deficiencies in construction.  The relief claimed includes not only compensation of Rs.30 lakhs

towards deviations, deficiencies and mental agony but also full refund of the purchase price of

Rs.31 lakhs, interest on housing loan and other funds of Rs.4.38 lakhs and refund of the

registration charges of Rs.1.6 lakhs.  There is no explanation how a prayer for refund of the sale

price and all other costs is made in a completed transaction of sale of property. There is no

quantification of the cost of rectification of the alleged defects. For violations of the approved

plan, if any, the builder developer is answerable to the concerned authorities. There is no

explanation why the complainant should be entitled to be compensated for them. Significantly,

the prayer is not for provision of a comparable alternative flat by the Developers/OP.  Nor, is it

limited to rectification of alleged defects.  The appellants/Complainants can therefore derive no

support from the decision of this Commission cited above.

8.      The State Commission has very rightly refused to entertain the petition filed by the

appellants/Complainants.  There is no justification to interfere with the order of the State

Commission, which has left it open to the appellants/Complainants to seek their remedy in an

appropriate court.  The appeal is therefore, dismissed. No order as to costs.                  

…..…………Sd/-….…….……

(VINAY KUMAR)PRESIDING MEMBER                                 

S/-

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3479 OF     2011 (From order dated 25.07.2011 in First Appeal No.1001 of        2011 of State Consumer Disputes Redressal Commission, Haryana)

 

 1.     The Manager, Mapsko Builders Pvt. Ltd., 52, North Avenu Road, Punjabi Bagh West, New Delhi-26.

2.      The Site Manager/Sale Executive, Mapsko Builders Pvt. Ltd. Mapsko City Homes, Sector-27, Sonepat through Sh. Gagan Chawla.   

                                                      ...…Petitioners 

Versus

 Mrs. Sunil Dahiya W/o Anup Singh Dahiya, R/o H. No. 3239, Sector-15, Sonepat, Haryana

  .... Respondent

BEFORE:

        HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER

        HON’BLE MRS. REKHA GUPTA, MEMBER

 For the Petitioners    :  Mr. Himanshu Gupta, Advocate

 For the Respondent    :  Mr. Ashim Shridhar, Advocate

Pronounced on: 5 th   August,     2013

ORDER

PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER

     Aggrieved by impugned order dated 25.07.2011 passed by State Consumer Disputes

Redressal Commission, Haryana, Panchkula (for short, ‘State Commission’),petitioners have

filed the present revision petition.

2.   Brief facts of this case are that respondent/ complainant had booked a residential independent

ground floor in Mapsko City Home project of the petitioners located at Sector-27,Sonepat and

had paid a sum of Rs.1,50,000/-on 2.2.2010 vide receipt no.4689 and further a sum of

Rs.1,50,000/- on 3.4.2010 vide receipt no.5162. Despite the above said part payment of her

residential, neither the petitioners have allotted the residential independent ground floor nor they

have started construction of the unit in question. Being harassed at the hands of the petitioners,

respondent has filed a complaint before the District Forum.

3.   The plea of the petitioners was that respondent has failed to make the payments of the house

as per the provisional allotment letter dated 30.1.2010. Hence, taking into account the act and

conduct of the respondent in not paying the scheduled amount of the house, provisional

allotment letter was cancelled and earnest money of the respondent was forfeited.

4.   District Consumer Disputes Redressal Forum, Sonepat (for short, ‘District Forum’), vide

order dated 28.6.2011 allowed the complaint of respondent.  

5.   Being aggrieved by the order of District Forum, petitioners filed an appeal before the State

Commission which was dismissed in limini alongwith cost of Rs.10,000/-.

6.   Now, petitioners have filed the present petition. 

7.   We have heard learned counsel for the parties and gone through the record.  

8.   It has been contended by learned counsel for the petitioners that as per agreed terms and

conditions contained in the application for registration of provisional allotment dated 30.1.2010,

the respondent was liable to pay Rs.30% of the basic sale price + 50% of EDC and IDC within

90 days of booking/at the time of allotment. This amount comes to Rs.5,26,512/-. However, the

respondent has paid only Rs.3 lacs till date and has not paid the remaining amount at the relevant

stage of payment when the same became due. Thus, it is in these circumstances, when the

respondent herself has defaulted in making the due and agreed payments in time, that she has not

been allotted the residential unit in question. The mere taking of the booking amount as well as

additional instalment of the house does not entitle the respondent to the allotment of the

residential unit, when there is failure on her part to make the 3rd payment of 10% of BSP + 50%

of the EDC & IDC, whereafter only she would have been allotted the residential unit. Since,

respondent herself has not deposited 30% of the initial amount, petitioners cancelled the

allotment of the respondent vide letter dated 17.12.2010. Both the Fora below have failed to

notice these aspects and as such impugned order passed by the State Commission is liable to be

set aside.

9.   On the other hand, it has been contended by learned counsel for the respondent that as per

concurrent findings of the Fora below, no construction of the project has been started by the

petitioners within the specified period, as such there is no infirmity in the impugned order passed

by the State Commission.  

10.  District Forum while allowing the complaint in its order has held;

               “In the written statement and affidavit, the respondent no.2 has admitted that the complainant remitted payment of Rs.1,50,000/- each in favour of the respondents. It was further agreed that the basic sale price of the house is Rs.15,35,040/-.Further in para no.4, page 3, the respondent no.2 has submitted that at present Rs.2,80,789/- is outstanding. Meaning thereby, the complainant has been making the payment of installments regularly, but despite that as per the respondent no.2, finding no other way, the respondents on 17.12.2010 has sent a letter for cancellation of provisional letter of allotment and forfeiture of earnest money. In our view, the action taken by the respondents against the complainant is

totally wrong, illegal, arbitrary, unjustified and against the principles of law.

 

              The respondent no. 2 in the entire written statement and affidavit has not uttered even a single word about the construction activities and about the development at the site. In our view, when there is no construction activities at the site or there is no development at the site, the respondents have no right to foist their wrong upon the complainant. In our view, definitely the complainant is entitled to get interest from the respondents on her deposited amount which the respondents are utilizing without providing her any facilities or services. Accordingly, it is directed to the respondents to pay interest at the rate of 09% per annum on the amount deposited by the complainant with the respondents from the date of its deposit till the possession of the floor is handed over to the complainant.

     Further, in our view, the respondents wrongly and illegally issued the letter dated 17.12.2010 to the complainant and the respondents are directed to withdraw the same. In our view, the complainant has been able to prove the deficiency in the service of the respondents and the respondents are directed to allot the residential independent ground floor in Mapsko City Home in Block ME 73 to 81 and 62 to 70 in East to the complainant. It is also directed to the respondents to accept the instalments without any interest, penalty or surcharge form the complainant i.e after start of the construction activities. It is also directed to the respondents to inform the complainant about the delivery of the possession of residential independent ground floor so that she could arrange the money for its deposit with the respondents. Since, the complainant has been able to prove the deficiency in service on the part of the respondents, the respondents are directed to compensate the complainant to the tune of Rs.10,000/-(Rupees Ten Thousand) for rendering deficient services, for unnecessary harassment and Rs.5,000/-(Rupees Five Thousand) under the head of litigation expenses. The present complaint stands allowed and the respondents are directed to make the compliance of this order within one month from the date of pronouncement of this order”.

 

 

11.   The State Commission while affirming the decision of the District Forum, in its impugned

order observed;

 

          “On our asking, it is not disputed by the learned counsel for the appellant that despite of taking the booking amount as well as additional insatllment of the house, complainant has not been allotted the residential unit in question. It is further not disputed that no construction of the alleged project has been started by the appellant till date. The plea of the appellant that 30% payment has not been made by the complainant, therefore, construction work of the flat in question could not be started, is not a ground to forfeit the earnest money of the complainant. It is not

disputed that builders always project their case favouring them instead of ever bothered for the interest of allottees. The builder used the hard earned money of the investors and thereafter acted in an arbitrary manner, so as to build up pressure upon the complainant to part with their hard earned money without performing their part of contract by raising construction of the flats. We are, therefore, of the view that there is great deficiency on the part of the appellants/ opposite parties in not raising the construction, rather impressing upon the complainant to pay the instalments in time without carrying the construction work of the flat in question. We, therefore, dismiss this appeal with the costs of Rs.10,000/- in limini.

              However, complainant would be entitled to adjust this amount of cost, while making the balance payment of his house to the appellants”.

 

 

12.   Petitioners have placed on record ‘Instalment Payment Plan’ showing as to what stage

what instalment amount has to be paid by the respondent. However, Instalment Payment Plan is

absolutely silent as to by which date the possession of the flat will be handed over to the

respondent.

13. Petitioners have not placed on record the agreement executed between the parties. However,

it has placed on record copy of “Floor Buyer’s Agreement”(page 56 to 65 of the paper book) of

some other purchaser. As per clause 14-a of the “Floor Buyer’s Agreement”;

“Promoter shall endeavour to complete the construction of the said Floor within a period of 18 months from the date of signing of this Agreement with the Buyer or within an extended period of six months, subject to force majeure conditions as mentioned in Clause (b) hereunder or subject to any other reasons beyond the control of the Promoter”.

 

14.    There is nothing on record to show as to what was the status of the construction when

respondent has filed the complaint before the District Forum.

15.     Both the Fora below have given a categorical finding that “No construction has started

yet”.

16.  State Commission, vide impugned order dated 25.7.2011 in this regard has observed

“It is further not disputed that no construction of the alleged project has been started by the appellant till date”.

 

17.    Petitioners in this case having accepted substantial amount of money from the respondent

in February/ April,2010 but had not started any construction till 25.7.2011(date of decision of

the State Commission). This conduct of the petitioners on the face of it amounts to unfair trade

practice.    

18.  In Lalit Kumar Gupta & Ors. Vs. DLF Universal Ltd.(First Appeal No.88 of 1999 and 345

of 2001) decided on 6.5.2002,this Commission has laid down;

“That there has been a delay in delivery in handing over the possession of the Town House which is a deficiency in service within the definition of this word as per CPA, 1986”.

 

19.  Present revision petition has been filed under Section 21(b) of the Consumer Protection Act,

1986. It is well settled that the powers of this Commission as a Revisional Court are very limited

and have to be exercised only, if there is some prima facie jurisdictional error in the impugned

order.

20.  Hon’ble Supreme Court in Mudigonda Chandra Mouli Sastry vs. Bhimanepalli Bikshalu and

others,(AIR 1999 (SC) 3095) has observed;

“It was also not open to the High Court in exercise of its revisional jurisdiction to have indulged in a reassessment of evidence and thereby interfered with the finding of the facts recorded by the two Courts below”.

 

21.  Hon’ble Supreme Court, in Rubi (Chandra) Dutta vs. United India Insurance Co. 2011 (3)

Scale 654 observed that;

“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”.

 

22.   Petitioners/builder in the present case “wants to have the cake and eat it too”, as admittedly

it has received substantial amount of money of the flat.  Thus, petitioners being the builders are

enjoying the substantial amount of money of the flat paid by the respondent. On the other hand,

respondent after having paid substantial amount of money of the flat to the petitioners is still

without any roof and also does not know as to when she will get the same.  

23.  Thus, no jurisdiction or legal error has been shown to us to call for interference in the

exercise of power under section 21 (b) of  the Act, since, State Commission has  given cogent

reasons in its order, which does not call for any interference nor it suffer from any infirmity

or revisional exercise of jurisdiction.

24.  In Ravinder Kaur Vs. Ashok Kumar, AIR 2004 SC 904, Apex Court observed ;

“Courts of law should be careful enough to see through such diabolical plans of the judgment debtor to deny the decree holders the fruits of the decree obtained by them.  These type of errors on the part of the judicial forum only encourage frivolous and cantankerous litigations causing law’s delay and bringing bad name to the judicial system”.

 

25.  It is well settled that no leniency should be shown to such type of litigants who in order to

cover up their own fault and negligence, goes on filing meritless petitions in different

foras.  Equity demands that such unscrupulous litigants whose only aim and object is to deprive

the opposite party of the fruits of the decree must be dealt with heavy hands.  Unscrupulous

builders like petitioners should not be spared who after taking substantial cost of the flat do not

perform their part of obligations. A strong message is required to be sent to such type of builders

that this Commission is not helpless in these type of matters.

26. Now question arises for consideration is as to what should be the quantum of costs which

should be imposed upon the petitioner for dragging the respondent upto this fora. It is not that

every order passed by the judicial fora is to be challenged by the litigants even if the same are

based on sound reasonings.

27.  Apex Court in Ramrameshwari Devi and Ors. Vs. Nirmala Devi and Ors, Civil Appeal

Nos.4912-4913 of 2011 decided on July 4, 2011 has observed ;           “45.  We are clearly of the view that unless we ensure that wrong –doers are

denied profit or undue benefit from the frivolous litigation, it would be difficult to control frivolous and uncalled for litigations.  In order to curb uncalled for and frivolous litigation, the Courts have to ensure that there is no incentive or motive for uncalled for litigation.  It is a matter of common experience that court’s otherwise scarce and valuable time is consumed or more appropriately wasted in a large number of uncalled for cases”.

        Apex Court Further observed; 

“It is also a matter of common experience that to achieve clandestine objects, false pleas are often taken and forged documents are filed indiscriminately in our courts because they have hardly any apprehension of being prosecuted for perjury by the courts or even pay heavy costs. In Swaran Singh Vs. State of Punjab (2000) 5 SCC 668 this court was constrained to observe that perjury has become a way of life in our courts.

        49. It is a typical example how a  litigation proceeds and continues and in the

end there is a profit for the wrongdoers. 

          50. Learned Amicus articulated common man’s general impression about litigation in following words:

   “Make any false averment, conceal any fact, raise any plea, produce any

false document, deny any genuine document, it will successfully stall the litigation, and in any case, delay the matter endlessly.  The other party will be coerced into a settlement which will be profitable for me and the probability of the court ordering prosecution for perjury is less than that of meeting with an accident while crossing the road”.

 28.  In our opinion, the present petition is nothing but a gross abuse of process of law and the revision petition is totally meritless and frivolous, which is required to be dismissed with punitive cost. Accordingly, we dismiss the present petition with punitive cost of Rs.75,000/-(Rupees Seventy Five Thousand only). 

29.    Out of the cost imposed upon the petitioners, Rs.   50,000/-(Rupees Fifty Thousand

only) be paid to the respondent by way of demand draft in her name.  Remaining cost of

Rs.25,000/-(Rupees Twenty Five Thousand only) be deposited by way of demand draft in the

name of “Consumer Legal Aid Account” of this Commission, within one month from today.

30.  In case, petitioners fail to deposit the aforesaid costs within the prescribed period, then it

shall also be liable to pay interest @ 9% p.a., till realization.

31.  Cost awarded to the respondent shall be paid only after expiry of the period of appeal or

revision preferred, if any.32.  List on 13th September,2013 for compliance.

 

.....…………………………J

(V.B. GUPTA)

 (PRESIDING MEMBER)

…………………………

(REKHA GUPTA)

MEMBER

SS

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.   2284 OF 2013 (From the order dated 01.04.2013 in First Appeal No. 32/2013of Rajasthan State Consumer Disputes Redressal Commission)WITHI.A. No. 3802 & 3803 /2013(STAY, EXEMPTION FOR FILINGTRANSLATION OF DOCUMENTS)

1.     Rajasthan Housing Board, Jyoti Nagar, Janpath, Bhagwan Das Road, Jaipur Through its Secretary

 2.     Rajasthan Housing Board, Through Deputy Housing Commissioner Circle-

First, Pratap Nagar, Sanganer, Jaipur...  Petitioners

 VersusGyan Singh s/o Shri Sujan Singh, r/o 15, Chaudhory Colony,Kartarpura Jaipur

… Respondent REVISION PETITION NO.   2285 OF 2013 (From the order dated 01.04.2013 in First Appeal No. 33/2013of Rajasthan State Consumer Disputes Redressal Commission)WITHI.A. No. 3804 & 3805 /2013(STAY, EXEMPTION FOR FILINGTRANSLATION OF DOCUMENTS)1.     Rajasthan Housing Board, Jyoti Nagar, Janpath, Bhagwan Das Road, Jaipur Through its

Secretary 2.     Rajasthan Housing Board, Through Deputy Housing Commissioner Circle-

First, Pratap Nagar, Sanganer, Jaipur...  Petitioners

 VersusKaruna Bohra w/o Ashwani Bohra, r/o House No. 51/62, Pratap Nagar, Sanganer, Jaipur

… Respondent BEFOREHON’BLE MR. JUSTICE K.S. CHAUDHARI,PRESIDING MEMBERHON’BLE DR. B.C. GUPTA, MEMBER  APPEARED AT THE TIME OF ARGUMENTS (IN BOTH REVISION PETITIONS) For the Petitioner(s)   Mr. Vinay K. Sharma, AdvocateFor the Respondent(s)   Mr. Rakesh K. Mudgal, Advocate

Mr. Gyan Singh, Advocate

 

PRONOUNCED   ON :   7 th   AUGUST 2013 O R D E R PER DR. B.C. GUPTA, MEMBER 

        These two revision petitions have been filed under section 21(b) of the Consumer Protection

Act, 1986 against the impugned order dated 01.04.2013 passed by the Rajasthan State Consumer

Disputes Redressal Commission (for short ‘the State Commission’) in FA No. 32/2013

“Rajasthan Housing Board versus Gyan Singh” by which while dismissing the appeal, the order

passed by District Consumer Disputes Redressal Forum, Jaipur in complaint no. 787 and 664 of

2012 filed by the respondents/complainants was upheld.  These two petitions are being

disposed off by this single order and a copy of the same may be placed on each file. 

2.     Brief facts of the case, as taken from complaint no. 787/2012 filed by Gyan Singh

respondent in RP No. 2284/2013 are that the Petitioner/OP launched a multi-storey housing

scheme at Mewar apartments, Haldighati Marg, Pratap Nagar, Jaipur.  The complainants

submitted applications for booking flats in the said Scheme by making payment of registration

amount of Rs.1,80,000/- each.  The approximate cost of the flat was stated to be 

Rs.17,90,000/-.  The complainants were successful in the draw of lots taken out on

14.04.2008.  Allotment letters were issued to them.  The complainants deposited the total amount

of the flat in instalments as demanded by the petitioner/OP.  As per commitment made by the

Petitioner/OP through the reservation letter dated 22.10.2008, the petitioners were required to

issue a allotment letter/possession letter of the flat within a period of 30 months from that letter

after allotting the house number.  However, the said allotment/possession letter was issued to the

complainant on 30.6.2011 meaning thereby that there was a delay of about three months in

issuing the said letter.  Further, the petitioners raised further demand of Rs.1,96,215/- in RP No.

2284/2013 and a demand of Rs.1,98,784/- in RP No. 2285/2013 from the complainants before

taking the possession of the flats.  The said amounts were also deposited by the complainants

under protest.  Further, an additional demand for Rs.97,225/- for parking in RP No. 2284/2013

and that of Rs.57,495/- in RP No. 2285/2013 was also made by the petitioner and the said

amount was also paid by the complainants.  It has been alleged by the complainants that the

petitioners/OP had not completed the construction work of the flats at the time of offer of

possession and hence, there was gross negligence and deficiency in service on the part of the

petitioner.  A complaint was, therefore, made before the District Forum and as per orders passed

by the District Forum on 5.12.2012 in both the cases, it was ordered that in case of complaint no.

787/2012 the petitioner/OP should pay interest @ 15% p.a. on the amount of Rs.17,90,000/-

from 30.03.2011 to 30.06.2011 and also to refund the parking charges of Rs.97,225/- with

interest @ 15% p.a. from the date of receiving such payment till refund.  District Forum also

ordered that for failure of the petitioner to provide all amenities, interest @ 10% p.a. should also

be paid on the total amount of Rs.17,90,000+Rs.1,96,215 = Rs.19,86,215/- and to pay

Rs.50,000/- by way of compensation for mental agony and Rs.3,000/- as litigation expenses. 

3.     In case of RP No. 2285/2013, it was ordered that the petitioner should pay interest @ 9%

p.a. on the total amount of Rs.21,40,000/- from 30.03.2011 to 30.06.2011 and to refund the

parking charges of Rs.57,495/- along with interest @ 12% from the date of receiving the amount

till refund.  It was also ordered that 10% interest should be paid for not providing all amenities

on the amount Rs.21,40,000/-+Rs.1,98,784/-=Rs.23,38,784/- and to pay Rs.50,000/- as

compensation for mental agony and Rs.3,000/- for litigation expenses.  Against these orders

dated 5.12.2012 passed by the District Forum, appeals were filed before the State

Commission.  The State Commission upheld the orders of the District Forum vide order dated

1.4.2013.  It is against this order that the present petitions have been filed. 

4.     Heard the learned counsel for the parties and examined the record. 

5.     It has been contended by the learned counsel for the petitioner that the District Forum has

not given any reasons for the grant of interest on the deposited amount under various

heads.  They have simply stated that interest @ 10%  should be given on the entire amount

charged by the petitioner till all the amenities are provided.  The order is, therefore, quite vague

and there has to be a proper rational basis for charging the interest.  The order passed by the State

Commission was quite vague/sketchy and no reasons have been given by them for upholding the

orders of the District Forum.  The petitioners had already allowed interest @ 6% p.a. on the

deposited amount on the period beyond 30.3.2011 till the offer of possession. 

6.     Learned counsel for the complainants / respondents stated that the petitioner had not been

able to provide proper amenities on the spot and this factor amounted to deficiency in service and

hence, they were required to compensate the complainants for the same. 

7.     We have examined the entire material on record and given a thoughtful consideration to the

arguments advanced before us.  An examination of the order passed by the District Forum

in Gyan Singh’s complaint, in Revision Petition No. 2284/2013, reveals that the District Forum

ordered to pay interest @15% p.a. on the total cost of the flat, whereas in Revision Petition No.

2285/2013 (Karuna Bohra’scomplaint), District Forum ordered to pay interest @ 9% on the cost

of the flat, i.e., Rs.21,40,000/- and interest @ 12% p.a. on the parking amount of Rs.57,495/.

Further, they have ordered in both the cases that interest @ 10% p.a. should be paid by the

petitioner on the deposited amount, till all the amenities are provided.  It is very clear that the

complainants shall be entitled for the said interest, even if a very minor facility is not provided

and this will result in unnecessary litigation between the parties.  The District Forum should have

adopted a more rational approach and given cogent reasons for awarding the interest and should

have laid down some specific time-table for completion of the amenities, if they felt that certain

facilities had not been provided.  Further, it is observed that in Gyan Singh case, the District

Forum stated in para 18 of their order that the complainant is entitled to get back the amount of

Rs.97,225/- charged for parking space along with an interest @12% p.a. However, while passing

the order, they directed that an interest @ 15% p.a. should be paid on this amount, which is an

apparent contradiction. 

8.     Further, it was the duty of the State Commission to examine all aspects of the case minutely

and then give specific reasons for agreeing or disagreeing with the findings of the District

Forum.  The order passed by the State Commission is vague and does not give, at all, any

reasons for agreeing with the orders of the District Forum.  The contention of the State

Commission that there is no need to re-analyse all the facts and evidence, is contrary to the

provisions of law.  The Hon’ble Apex court have also taken a similar view in many cases that it

is the duty of the appellate court to give reasons for agreeing or disagreeing with this

order.  Reference may be made in this regard to the case “HVPNL versus Mahavir [(2001) 10

SCC 659]” 

8.     Based on this discussion, we are inclined to accept these two revision petitions.  The order

passed by the State Commission is set aside and the cases are remanded back to the State

Commission with the direction to analyse all aspects of the cases and then pass a detailed

speaking order giving reasons for their conclusion.  No order as to costs. Sd/-(K.S. CHAUDHARI J.)PRESIDING MEMBER  Sd/-(DR. B.C. GUPTA)MEMBERRS/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2294 OF     2013 Alongwith ( I.A.for C/Delay and  Stay )

 (From order dated 01.04.2013 in First Appeal No.117 of        2011of State Consumer Disputes Redressal Commission, Delhi)

 Ansal Housing and Construction Ltd. IS, UGF, Indraprakash Building, 21, Barakhamba Road, New Delhi-110001.

.... Petitioner

Versus

Rajendra Prasad Gupta, R/o 46, Amrit Nagar, South Extension Part-I, New Delhi.

...…Respondent     

 

BEFORE:

 HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER

 HON’BLE MRS. REKHA GUPTA, MEMBER

 For the Petitioner    :  Mr.Aaditya Vijay Kumar, Advocate

 Pronounced on: 12 th   August, 2013

  ORDER

PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER

      Petitioner/O.P. aggrieved by order dated 1.4.2013 of the State Commission, Delhi (for short,

‘State Commission’) has filed the present revision petition under Section 21 of the Consumer

Protection Act, 1986(for short, ‘Act’).

2.   At the outset, it may be pointed out that petitioner for the reasons best known to it, has not

placed on record copy of the complaint filed by the respondent/complainant before District

Forum. On this short ground, present revision is liable to be dismissed. In Special Leave to

Appeal (Civil) No. 22967of 2012,Ganpathi Parmeshwar Kashi and Anr. Vs. Bank of India &

Anr, decided by Hon’ble Supreme Court on 14.1.2013, the court observed;

          “i) the petitioners have deliberately omitted to place before the Court, copies of the complaint filed by them and the written statement filed by respondent No. 1. This has been done with a view to avoid scrutiny by the Court of the averments contained in the complaint”.

 3.   Be that as it may, as apparent from the record, respondent had filed  Complaint No.1106 of

2011, before District Forum-VI, I.P. Estate, New Delhi (for short, ‘District Forum’).Since,

petitioner did not appear before the District Forum despite service of the notice on 23.5.2012,

District Forum passed the following order;

   “23.05.12:Mr.Ankit Sinha, Counsel for complainant. Notice already served on OP. OP Called several times. OP proceeded ex-parte. Fix up for ex-parte evidence on 28.8.2012”.  

 

4.    Against order dated 23.5.2012, petitioner filed (First Appeal No.117of 2013) before the

State Commission. Alongwith it, an application seeking condonation of delay of 221 days was

also filed.

5.     State Commission, vide impugned order rejected the application for condonation of delay

and dismissed the appeal being time barred.

6.    Thus, aggrieved by the impugned order, petitioner has filed this revision.

7.    We have heard the learned counsel for the petitioner and gone through the record.

8.    It has been contended by learned counsel for the petitioner that no valid and effective notice

has been served upon the petitioner. Notice for hearing for 19.3.2012 was received by the

petitioner on 22.3.2012 which cannot be said to be valid and effective service. Since, no notice

has been received from the District Forum, thus there were sufficient grounds for setting aside the

ex-parte order passed by the District Forum. The application for condonation of delay was filed

before the State Commission as a matter of abundant caution, as the ex-parte order came to be

known only on 22.1.2013.

9.   Main grounds on which condonation of delay was sought before the State Commission read

as under;

“3.  That the appellant had no notice of the    pendency of the present matter and that an order to proceed ex-parte against it had been made on 23.05.2012 and the knowledge of the pendency of the said matter was obtained by the appellant company only on 22.01.2013.

 

4.    That on 22.01.2013, when a clerk of the appellant company who was newly assigned in 2013 to look after the matters of the appellant company in Learned District Consumer Disputes Redressal(New Delhi) ITO, New Delhi-01 was noting the dates of various matters of the appellant company before the Hon’ble District Forum, from the court diary, he noticed that against the date of 30.01.2013 the present matter against the appellant is listed for final arguments. The same was accordingly communicated to the concerned officer of the legal department of the appellant company and inquiries made as to how the matter could have skipped the notice of the officers assigned for handling consumer cases in the said District Forum. It was then that

the clerk who was handing the matters in District Forum till November, 2012 which he saw in the notice board when he went to the court premises and orally stated to the Hon’ble District Forum that the appellant did not know of the pendency of the said matter and will file an application which oral prayer was not allowed. The said clerk left for his native place on the very same day due to some family problems and returned after a week and since he was assigned in another department of the appellant company in December, 2012 he forgot to bring the said event to the notice of the concerned officers of the appellant company earlier and the present appeal therefore could not be filed earlier.

 

5.    That this being the situation an application for inspection of the file of the present matter was urgently made on 24.1.2013 and which inspection was allowed to be carried on 28.01.2013 since 25.01.2013 to 27.01.2013 were holidays. It was found that the present matter was indeed listed for final arguments on 30.1.2013 after an ex parte order against the appellant was passed on 23.05.2012 and pleadings and evidence complete in the matter. It was further found that the matter was listed on 19.03.2012 although the same was not shown in the cause list in the website of the Hon’ble District Forum on the said date.

 

 6.   That in this view of the matter is it humbly submitted that the appellant became aware of the pendency of the present proceedings only on 22.1.2013 and filed the present appeal immediately after inspection of the court file which was done on 28.01.2013. In this view of the matter the delay in filing the present appeal may kindly be condoned in the interest of justice”.

 

10.   In the application for condonation of delay, petitioner itself admits that knowledge of the

pendency of the matter before the District Forum was obtained by the petitioner on 22.1.2013. In

the same breath, petitioner  in the application for condonation of delay has taken an altogether

different stand  stating that;

   “Clerk who was handling the matters in the District Forum till November, 2012 has stated that he saw the matter listed in the cause list on 30.11.2012”.

 

11.   It is further the case of petitioner that said Clerk left for his native place on the same very

day and returned back after a week and since that clerk was assigned in other department of the

petitioner-company, he forgot to bring the said event to the notice of the concerned officers of the

petitioner-company earlier and the appeal, therefore, could not be filed earlier.

12.   Another version with regard to the service of notice from the District Forum has been

mentioned by the petitioner in the “List of Dates and Events”(page no.1 of the paper-book) and

the same state as under;

    “The petitioner receives the notice returnable on 19.03.2012, three days later i.e. on 22.3.2012”.

 

13.   Thus, as per petitioner’s own case, petitioner’s clerk was aware about the pendency of the

matter before the District Forum for 19.3.2012 and later on for 30.11.2012.

14.   However, in the entire application for condonation of delay, name of that clerk has not been

mentioned nor affidavit of that so called clerk has been filed.

15.   The State Commission while dismissing the appeal in its impugned order observed;

       “9   In the case in hand the ground is that the work was assigned to the officers of the company, who skipped. Obviously,there is a sheer negligence and carelessness on the part of the company in dealing the cases.  Suffice to say, that the appellant is a company registered under the Indian Companies Act, 1956 and has large number of employees in the Law Department to deal with the legal cases.  Further, it is having full-fledged legal department under its command comprising large number of legal personal. Inspite of having all the resources in its command, if a company registered under the Indian Companies act takes more than seven months in filing the appeal, then it can only be said that how inefficient, careless and negligent are the employees of the appellant.  Despite having all the facilities and infrastructure under it,the appellant officials have acted in a very careless and negligent manner for the purpose of filing this appeal. We may further mention that the order sheet dated 23.5.2012 of the aforesaid case of the District Forum that a specific and categorical finding has been made by the District Forum that notice has already been served on the appellant, and despite several times none appeared. This very apparently shows the callous and lethargic act of the appellant. Under these circumstances,the application for condonation of delay is hereby rejected. In consequence, the appeal filed by the appellant dismissed as being barred by time thereof”.                      

 

 

16.      Apex Court in Anshul Aggarwal Vs. New Okhla   Industrial Development Authority, IV

(2011)CPJ 63 (SC) has observed ;

   “It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the consumer foras”.

 

17.  This Commission in Mahindra Holidays & Resorts India Ltd. vs. Vasantkumar H.

Khandelwal and Anr, Revision Petition No.1848 of 2012 decided on 21.5.2012 has held;

   “that under the Consumer Protection Act, 1986 the District Forum is supposed to decide the complaint within a period of 90 days from the date of filing and in case of some expert evidence is required to be led then within 150 days. The said Bench dismissed the revision petition on the ground that it was delayed by 104 days”.

 

18.  It is well settled that Qui facit per alium facit per se, Negligence of a litigant’s agent is

negligence of the litigant himself and is not sufficient cause for condoning the delay. See M/s.

Chawala & Co. vs. Felicity Rodrigues, 1971 ACK 92.

19.  There is nothing on record to show that petitioner’s Company is being represented by

illiterate persons. Therefore, it was expected from petitioner to have been vigilant and careful in

pursuing the litigation which was pending before the fora below. Thus, gross negligence,

deliberate inaction and lack of bonafide is imputable to the petitioner. In order to cover up its

own negligence, the petitioner has shifted the entire burden upon a clerk, which cannot be

justifiable under any circumstances.

20.  Thus, in our view, the discretion exercised by the State Commission in declining the

petitioner’s prayer for condonation of long delay of 221 days, does not suffer from any legal

infirmity and the possibility of this Commission forming a different opinion in the matter of

condonation of delay cannot justify interference with the impugned order under Section 21(b) of

the Act.

21.  The present revision petition having no merit and being without any legal basis, has been

filed just to delay the disposal of the complaint filed by the respondent. Under these

circumstances, the present revision is required to be dismissed with punitive cost. Accordingly,

we dismiss the present revision petition in limine with cost of Rs.30,000/-(Rupees Thirty

Thousand Only).

22.   Out of this cost, Rs.20,000/-(Rupees Twenty Thousand Only) shall be paid to the

respondent. Petitioner is directed to deposit the cost of Rs.20,000/- by way of demand draft in the

name of respondent and balance amount of Rs.10,000/-(Rupees Ten Thousand Only) by way of

demand draft in the name of ‘Consumer Legal Aid Account’ of this Commission. Aforesaid costs

be deposited within four weeks. In case, petitioner fails to deposit the aforesaid costs within the

specified period, then it shall also be liable to pay interest @ 9% p.a. till realization.

23.   Cost awarded in favour of the respondent shall be paid to him only after expiry of period of

appeal or revision preferred, if any. 

24.  Pending application, if any, stand disposed of.

25.  List on 13.09.2013 for compliance.

                                                                     …..…………………………J

                                               (V.B. GUPTA)

            PRESIDING MEMBER

…..……………………

(REKHA GUPTA)

                                                             MEMBER

SSB

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

  REVISION PETITION NO. 4288 OF 2012                        

(From order dated 16.08.2012 in First Appeal No. 265 of 2012 of theUT Chandigarh State Consumer Disputes Redressal Commission, Chandigarh)  Rajbeer Singh S/O Shri Satya Pal Singh, House No. 36-A, Sector-51-A,Chandigarh-160047

… Petitioner 

Versus 1.   The Manager, The Emaar MGF Land Ltd., SCO No. 120-122, 1st Floor,     Sector 17-C, Chandigarh-160 017    2.   M/S Emaar MGF Land Ltd. Corporate Office ECE House, 28, Kasturba Gandhi Marg New

Delhi-110001… Respondents   

                            BEFORE: 

HON’BLE  MR.JUSTICE J. M. MALIK, PRESIDING MEMBER          HON’BLE  DR. S. M. KANTIKAR, MEMBER For the Petitioner                            : Mr. Rajeev  Ranjan ,  Advocate For the Respondent              : Ms. Kartika Sohag, Advocate with                                                  Mr. Arjun Jain, Authorized Representative 

 

Pronounced On 16 th   August , 2013  ORDER

PER DR. S.M. KANTIKAR

1.   That  the  Petitioner  prefers  the  instant  Revision  Petition  against the  impugned  order  dated  16/08/2012  passed  by  the  Hon’ble State  Consumer Disputes  Redressal  Commission, Union  Territory, Chandigarh  (herein  after  referred  to  as, ‘State  Commission’)  in First Appeal No. 265 of 2012 titled as “Rajbeer Singh vs. The Manager, The  Emaar  MGF  Land  Ltd.  &  Anr.”. By  the  final impugned  order  dated  16/08/2012  the  Hon’ble  State Commission dismissed  the  Appeal  and upheld  the  order  dated  27/06/2012 passed  by  the  Hon’ble District Consumer Disputes Redressal Forum-1, UT, Chandigarh ( herein  after referred to as, ‘District Forum’)  in  Consumer  Complaint  No. 130 of 2012. It  is  submitted  that  the  Hon’ble  State Commission  as well  as  Hon’ble District Forum dismissed the case without considering  the  factual  as  well  as  legal  aspect  of  the  dispute.

2.   The Facts in Brief:

That  the  Complainant,  booked  a  residential  floor  in “The Terraces”  at Mohali Hills, in Sector 108, S.A.S. Nagar, Mohali, Punjab,  and  paid  a  sum of Rs.3 lacs, vide cheque dated 04.09.2008. The OPs, vide communication dated 13.04.2009, Annexure C-1, informed about

the provisional allotment of unit No.574/GF,  in  Mohali  Hills, aforesaid. The  Complainant  was  given assurance, by  the  OPs, that  the  Scheme  would  be  launched, within one month  and construction would start, but they failed to abide by their commitments. The Complainant, sent letters dated 05.10.2009, Annexure C-2 and 30.10.2009 Annexure C-4, to OP No.1,  with  a  request  to refund the  earnest  money  of  Rs.3  lacs, within 15 days, but all in vain. Ultimately, a legal notice dated 23.12.2009,  Annexure  C-5,  was  issued  to  the  OPs,  for  refund  of the  amount,  but  no positive  response  was  received. It  was  stated by OP that  the Complainant  was  asked  to  sign  the  Buyer’s  Agreement, failing  which, the  deposited  amount  shall  stand  forfeited, but  the Complainant  never  signed the  same  and, as  such, the  terms  and conditions  were  not  applicable  to  him. It  was  further  stated  that, by  not  refunding  the  earnest  money, deposited by the Complainant,  the  OPs, were  not  only  deficient, in rendering service, but also indulged into unfair trade practice. When the grievance of the Complainant, was not redressed, left with no alternative, a  complaint,  under Section 12 of the Consumer Protection Act, 1986 (herein after to be called as the Act only), was filed.

3.   OPs  No. 1  and  2, in  their  joint  written  version, pleaded  that  the District Forum, at Chandigarh, had no territorial Jurisdiction, to entertain and decide the complaint. It was admitted that the Complainant, booked  the  apartment, in  question, and  paid  the earnest money, to  the  tune  of  Rs.3  lacs, against  the total  sale consideration of Rs.46 lacs, but  he  failed  to  sign  the  Buyer’s Agreement, till  the  date  of  filing  the  complaint. It  was  stated  that as  per  the terms  and  conditions of Advance Registration Application  Form  for  Allotment, duly  signed  by  the  Complainant and Meenakshi, co-applicant, in the event of non-signing of the Buyer’s Agreement, by the Complainant, and returning the same, within  30  days, from  the  date  of  receipt  of  the  same  from the OPs, the earnest money deposited by the Complainant, stood forfeited, without any notice/reminder.

 

4.   After  hearing  the  Counsel  for  the  parties,  and, on  going  through the  evidence, and  record  of  the  case,  the  District  Forum, dismissed  the complaint.

 

5.   Aggrieved  by  the  order  of  the  District  Forum, the  Complainant filed  an  Appeal  before the State Commission. The State Commission  heard  the counsel  for  both  the  parties  and  through the  evidence  and  records  in  this  case  and  dismissed  the  Appeal as  it  was  deferred  on  merits.

 

 

6.   Aggrieved  by  this  order  the  Complainant  filed this  Revision Petition  in  National  Consumer  Disputes  Redressal  Commission.

 

7.   We  have  heard  the  Counsel  for  both  the  parties  and  perused the evidence on record. The Counsel for the Petitioner submitted that the Complainant booked the apartment by

paying Rs.3 lacs and the provisional  allotment  letter  Annexure-C. But  the  Complainant  never  received  the  buyers agreement. Hence, the question of signing  and  returning  the  agreement  within 30 days from  the  date of receipt did not arise at all. Further, submitted that the OP unilaterally  changed  to  the  construction  linked  installment  plan. The  Complainant  wrote  numerous  letters  and  requested  for refund  of  advance money  deposited  but  the  OP  did  not  respond. We  have perused  the  “Details  and  Broad  Terms  and Conditions”  mentioned  alongwith  advance registration  application  form  for allotment  issued  by  OP. In those conditions, Under  Para  8  reproduced  as  follows:

 8. Surrender/Cancellation

8.1)     In case the refund of the initial deposit is sought after acceptance of application/registration within_____ months of issue  of  Allotment  Letters, shall be  refunded  after  forfeiting 20% of  the  registration  amount.

8.2)     The  Applicant  hereby  authorizes  the  Company  to  forfeit  the earnest  money  along  with the  interest  paid, due  or  payable, along  with  any other  amounts  of  non-refundable  nature, in case of failure by the Applicant to sign and return to the company the Buyer’s Agreement within thirty (30) days of its dispatch by the company.

 

Therefore,  as per  condition  number  8.1  Complainant’s stand is  a  valid  one. Counsel for OP Ms. Kartika Sohag  relied  upon  only the clause 8.2  and stated  that forfeiting of earnest money was correct. The Counsel for the OP  contended  that  the  Complainant cannot take  advantage  of his  own  wrong with  intention  of  causing wrongful laws to  the  Respondent. The  Complainant  as  under  the terms  of  advance  application  registration  form  was obliged  to return  the  executive  buyers  agreement  within  30  days  of  dispatch  from  the  Respondent’s company i.e. 24.04.2009. Therefore, the  OP was  agreeing  the  forfeiting  the  earnest  money.

 

8.    Counsel for OP relied upon an authority of  Hon’ble Apex Court in V. Lakshmanan v. B.R. Mangalgiri and Ors. (1995) Suppli. (2) SCC 33. It was held as follows:

“The question then is whether the Respondents are entitled to forfeit the entire amount. It is seen that a specific covenant under the contract was that Respondents are entitled to forfeit the money paid under the contract. So when the contract fell through by the default committed by the Appellant, as part of the contract, they are entitled to forfeit the entire amount”.

She also relied upon another case Videocon Properties Ltd. v. Dr. Bhalchandra  laboratories  and  others (2004) 3  SCC 711, dealt with  a  case  of sale  of  immovable  property. It  was  held by Hon’ble Supreme Court as  follows:

“It was a case where the plaintiff-Appellants had entered into an agreement with the Respondents-Defecndents on 13.05.1994 to sell the landed property owned by the Respondents and a sum of Rs.38,00,000/- was paid by the Appellants as deposit or earnest money on the execution of the agreement. In that case, this Court examined  the nature and character of the earnest money deposit and took

thed view that the words used in the agreement alone would not be determinative of the character of the “earnest money ” but really the intention of the parties and surrounding circumstances. The Court held that the earnest money serves two purposes of being part-payment of the purchase money and security for the performance of the contract by the party concerned. In that case, on facts, after interpreting various clauses of the agreement.

 

9.     The  Petitioner’s  Counsel  argued  that  it  was  not  the  earnest money  but  it  was  the  advance  towards  the  initial  payment  of  the payment.

 10. The  arguments  of  OP  was  that  the  Petitioner  deposited  the  initial  deposit.

It  is  equal  in  nature  of  earnest  money  and  referred  few  authorities  of Hon’ble  Supreme Court  but  in  our opinion  those  authorities  are  not  applicable  to  this  case  on  hand.

 11. Therefore,  it  is  very  clear  that  the  OP  failed  to  pay  the  amount

of  Rs.3  lacs  but  forfeited  on  the  ground  as  stated  above. The Complainant never  signed  the  buyers  agreement  therefore, the condition  no. 8.2  will  not  apply. Hence  the  company  has  no  right to  forfeit  the  amount deposited  by  the  Complainant  on  account of  booking  residential  floor  in  “The  Terrace”  at  Mohali  Hills. It  is the  deficiency  in  service  and  unfair trade  practice.

 12. Both  the  Fora  below  have  not  appreciated  the  Para 8.1 and  only relied  upon  Para 8.2.

Therefore, the Petitioner / Complainant is entitled for the refund as per Para 8.1 i.e., after deducting 20% of the Registration amount.

 13. In view of the above discussion we  set  aside  the  order  passed by

both  the  Foras  below  and  pass  the order  that the  OPs  are  directed   to  refund Rs. 240000/- only to the complainant  from  the  date of filing of the Complaint within 60 days otherwise, it will carry interest at 9% per annum till recovery. No order as to costs.

       ..…………………..………

(J.M. MALIK J.)      PRESIDING MEMBER

                                                                                     ……………….……………

                               (Dr. S.M. KANTIKAR)   MEMBER

 Mss

 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI       REVISION PETITION NO. 2614 OF 2013With

IA/4417/2013 (For stay)

(From the order dated 03.05.2013 in Appeal No. A/10/1304 Maharashtra State Consumer Disputes Redressal Commission, Mumbai)

 

1. M/s. S.S. Construction A Partnership firm having its place of business At Sushanti, 54/55, 50A, D’souza Colony College Road, Nasik -5

2.  M/s. Shibu Gopalkrishnan Nair Partner of M/s. S.S. Construction Age:39, Occupation : Business Sona, Plot No. 57, D’souza Colony Gangapur Road, Nasik

… Petitioners/Opposite Parties(OP)

                                                Versus1. Mr. Mathew Varghese Aged: 43 years, Occupation: Service Residing at 12, Ebenzer Bldg., 13th Road, Chembur, Mumbai – 71 Through its Power of attorney holder Shri Eapen Mathew aged 38 years of Mumbai Indian Inhabitant Residing at 1/11, Nityanan Nagar No. 4, S.N. Marg, Andheri East Mumbai - 69.              

2. Mr.Shailender Arvind Sukhatankar Age: 50, Occupation: Business R/o Sushanti, 54,55, 56A, D’souza Colony College Road, Nasik

… Respondents/Complainants

 

BEFORE 

 HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

 HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioners      :          Mr. Rajesh Kumar Verma, Advocate

 PRONOUNCED ON           23 rd   August,     2013

 

O R D E R 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER  

This revision petition has been filed by the Petitioners/OP against the order dated

03.05.2013 passed by the Maharashtra State Consumer Disputes Redressal Commission,

Mumbai (in short, ‘the State Commission’) in Appeal No. A/10/1304 –Mathew Varghese & Anr.

Vs. M/s. S.S. Construction & Anr. by which, while  allowing appeal, order of District Forum

dismissing complaint was set aside and complaint was allowed. 

2.      Brief facts of the case are that complainants/respondent No.1 purchased two flats bearing

Nos. 6 & 8 in a building constructed and developed by OPs. Complainant paid a sum of

Rs.9,43,000/- from time to time and balance of Rs.26,676/- was to be paid at the time of

possession along with Rs.30,000/- for the terrace.  It was further alleged that OPs failed to

execute written agreement and also failed to deliver possession.  Alleging deficiency on the part

of OPs, complainant filed complaint.  OP contested that agreement had been terminated vide

letter dated 10.2.2004 and complainant was asked to collect the money and prayed for dismissal

of complaint.  Ld. District Forum after hearing both parties dismissed complaint.  Appeal filed

by the complainant was allowed by State Commission vide impugned order and Ld. State

Commission directed OP to handover possession of Flat Nos. 6 & 8 after taking Rs.26,676/-

towards balance amount and Rs.30,000/- for terrace or in the alternate, to refund Rs.9,69,676/- to

the complainant along with interest @ 24% p.a. from 20.10.2008 i.e. date of filing of the

complaint till its realization. 

3.      Heard learned Counsel for the petitioner at admission stage and perused record. 

4.      Ld. Counsel for the petitioner submitted that he presses revision petition only to the extent

of award of interest @ 24% p.a. from 20.10.08 and petitioner is ready to refund original amount

as ordered by learned State Commission. 

5.      Perusal of record clearly reveals that complainant made last payment in June, 2000 and

later on as per statement of OPs agreement was terminated in 2001 and asked complainant to

collect the money paid by him.  Learned Counsel for the petitioner during the course of

arguments submitted that petitioner has sold these flats to other persons in 2006.  In such

circumstances, it becomes clear that petitioner was enjoying fund of the respondent/complainant

from 2000 to 2008 and at the same time, also enjoyed fund received from sale of flats in

2006.  Learned State Commission has directed petitioner to refund money along with 24% p.a.

interest only from 20.10.2008 and has not granted interest from the date of making payment.  As

no interest has been awarded from June, 2000 to 19.10.2008, grant of 24% p.a. interest from

20.10.2008 till realization cannot be said to be unreasonable.    

6.      We do not find any infirmity, irregularity, illegality or jurisdictional error in the impugned

order and revision petition is liable to be dismissed at admission stage. 

7.      Consequently, revision petition filed by the petitioner is dismissed at admission stage with

no order as to costs.                                      ..……………Sd/-………………

( K.S. CHAUDHARI, J)

 PRESIDING MEMBER 

  ..………Sd/-……………………

( DR. B.C. GUPTA )

 MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI       REVISION PETITION NO.   2117 OF 2013 (From the order dated 21.03.2013 in Appeal No. 172 of 2013 of the Haryana State Consumer Disputes Redressal Commission, Panchkula)

With IA/3474/2013 (Stay)

 

The Hisar Scholars Co-op. Housing Building Society Ltd., Through its President Mrs. Kapila Daughter of Narain Singh having its office at Kaimari Road, Amardeep Colony, Hisar

… Petitioner/Opp. Party (OP)

                                           Versus

Dr. K. Lakshminarayana S/o Sh. Adinarayana R/o 59A/8/1-4, Plot No. 14, Road No. 1, Vasvinagar Vijayawada, Andhra Pradesh

… Respondent/Complainant

 

BEFORE

     HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

     HON’BLE DR. B.C. GUPTA, MEMBER

 

For the Petitioner           :        Mr. Sanchar Anand, Advocate                                

PRONOUNCED ON       29 th   August ,     2013

 O R D E R 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER  

This revision petition has been filed by the petitioner/OP against the order dated

21.03.2013 passed by the Haryana State Consumer

Disputes RedressalCommission, Panchkula (in short, ‘the State Commission’) in Appeal

No.172/2013 – The Hisar Scholars Co-op. House Bldg. Soc. Ltd. Vs. Dr. K.Lakshminarayana/

by which, appeal was dismissed as barred by 566 days.

2.      Learned District Forum vide its order dated 18.7.2011 while allowing complaint directed

OP/Petitioner as under:“As a result of above discussion, we are of the considered view that there is ‘Deficiency in Service’ on the part of the OP society and they have illegally cancelled the allotment of the plot of the complainant. Hence, we set aside the cancellation order and direct the OP society to restore the plot in question i.e. Plot No. B-97 to the complainant and offer the possession of the plot in question to the complainant after completing the development work.  At the same time, we direct the complainant to deposit

the development charges, if any. The opposite parties are further directed to pay Rs.5000/- (Rupees Five thousand only) to the complainant as litigation expenses. However, the opposite parties-society have admitted in their reply that plot in question were reallotted further, so the reallottees are at liberty to take legal recourse against the opposite parties-society.  Order of this forum be complied with within one month from the date of receipt of copy of this order. A copy of this order be supplied to both the parties free of cost as required under Sub Rule 10 Rule 4 of the Haryana Consumer Protection Rules, 1988. File be consigned after due compliance”.

                                                                                       

3.      Petitioner filed appeal before State Commission which was dismissed as barred by 566

days against which, this revision petition has been filed. 

4.      Heard learned Counsel for the petitioner at admission stage and perused record. 

5.      Learned Counsel for the petitioner submitted that learned District Forum entertained

complaint without jurisdiction and inspite of sufficient cause shown for not filing appeal within

limitation, learned State Commission has committed error in dismissing appeal as barred by

limitation; hence, revision petition be admitted. 

6.      Petitioner, along with appeal, filed application for condonation of delay filed before learned

State Commission, which runs as under: “That although the copy was prepared by the District Consumer Forum on 18.7.2011 but it was never supplied to the appellant.  That only on 20.12.2012 when applicant asked his counsel at Hisar with regard to the status of the case then he informed that case has already been decided long back against them.  The appellant asked the counsel about the remedy available to him against the dismissal of this case.  He was informed that now the appeal can filed in the Hon’ble State Commission, Haryana.  That in between there is a delay of 566 days which is inadvertent and beyond the control of the applicant therefore, the same may kindly be condoned, in the interest of justice, other the applicant will suffer an irreparable loss”.

  

7.      Petitioner has not given any satisfactory explanation for not getting information regarding

order of District Forum from 18.7.2011 to 20.12.2012.  Order of District Forum clearly reveals

that order was passed after hearing Counsel for the petitioner.  No reasons have been given by

the petitioner why no inquiry was made by the petitioner from his Counsel or from office of the

District Forum regarding disposal of complaint for a long period of 17 months.  Not only this,

when petitioner came to know about judgment of District Forum on 20.12.2012, petitioner

should have filed appeal immediately, whereas appeal was filed before State Commission on

21.3.2013 meaning thereby, after 3 months and no explanation explaining delay of 3 months was

given after getting knowledge of the order.  Learned State Commission has rightly dismissed

appeal as barred by 566 days and we do not find any illegality, irregularity or jurisdictional error

in the impugned order. 

8.        As there was inordinate delay of 566 days, this delay could not have bene condoned in the

light of the judgments passed by the Hon’ble Apex Court and the National Commission in

(1) (2010) 5 SCC 459 – Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial

Development Corporation and Anr.; (2) (2012) 3 SCC 563 – Office of The Chief Post Master

General and Ors. Vs. Living Media India Ltd. and Anr. and (3) 2012 (2) CPC 3 (State

Commission) – AnshulAggarwal Vs. New Okhla Industrial Development Authority.

9.        Consequently, revision petition filed by the petitioner is dismissed at admission stage with

no order as to costs.

                                                                                                                            ..………………Sd/-……………

( K.S. CHAUDHARI, J)

PRESIDING MEMBER 

…………Sd/-………………

( DR. B.C. GUPTA )

MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI                                                         

REVISION PETITION NO.   2100 OF 2013 (From the order dated 21.03.2013 in Appeal No. 174 of 2013 of the Haryana State Consumer Disputes Redressal Commission, Panchkula)

With IA/3460/2013 (Stay)

  

The Hisar Scholars Co-op. Housing Building Society Ltd., Through its President Mrs. Kapila Daughter of Narain Singh having its office at Kaimari Road, Amardeep Colony, Hisar

… Petitioner/Opp. Party (OP)

Versus

1. Mohinder Kumar Jain S/o Sh. R.L. Jain, Microbiologist, C.C.S., H.A.U., Hisar

2. Jasbir Singh S/o Sh. Hari Singh R/o 147/7, Jawahar Nagar, Hisar

3.  Sunil Kumar S/o Sh. Chhotu Ram R/o 597/38, Krishna Nagar, Hisar

… Respondents/Complainants

 

BEFORE

     HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

     HON’BLE DR. B.C. GUPTA, MEMBER

 

For the Petitioner           :        Mr. Sanchar Anand, Advocate                                

 

PRONOUNCED ON         29 th   August ,     2013

 O R D E R 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER  

This revision petition has been filed by the petitioner/OP against the order dated

21.03.2013 passed by the Haryana State Consumer

Disputes RedressalCommission, Panchkula (in short, ‘the State Commission’) in Appeal No.

174/2013 – The Hisar Scholars Co-op. House Bldg. Soc. Ltd. Vs. Mohinder Kumar Jain

& Ors. by which, appeal was dismissed as barred by 566 days. 

2.      Learned District Forum vide its order dated 18.7.2011 while allowing complaint directed

OP/Petitioner as under:“As a result of above discussion, we are of the considered view that there is ‘Deficiency in Service’ on the part of the OP society and they have illegally cancelled the allotment of the plot of the complainant. Hence, we set aside the cancellation order and direct the OP society to restore the plot in question i.e. Plot No. 158-B to the complainant and offer the possession of the plot in question to the complainant after completing the development work.  At the same time, we direct the complainant to deposit the development charges, if any. The OP No.1-society is further directed to pay Rs.5000/- (Rupees Five thousand only) to the complainant as litigation expenses. However, the OP No. 1-society has admitted in its reply that plot in question were allotted to Jasbir Singh son of Shri Hari Singh, R/o 147/7, Jawahar Nagar, Hisar and further transferred the plot in question to Sunil Kumar son of Shri Chhotu Ram, R/o 597/38, Krishna Nagar, Hisar. Hence the opposite party No. 4 & 5 is at liberty to take legal recourse against the OP No. 1-society.  Order of this forum becomplied with within one month from the date of receipt of copy of this order. A copy of this order be supplied to both the parties free of cost as required under Sub Rule 10 Rule 4 of the Haryana Consumer Protection Rules, 1988. File be consigned after due compliance”.

                                                                                       

3.      Petitioner filed appeal before State Commission which was dismissed as barred by 566

days against which, this revision petition has been filed. 

4.      Heard learned Counsel for the petitioner at admission stage and perused record. 

5.      Learned Counsel for the petitioner submitted that learned District Forum entertained

complaint without jurisdiction and inspite of sufficient cause shown for not filing appeal within

limitation, learned State Commission has committed error in dismissing appeal as barred by

limitation; hence, revision petition be admitted. 

6.      Petitioner, along with appeal, filed application for condonation of delay filed before learned

State Commission, which runs as under: “That although the copy was prepared by the District Consumer Forum on 18.7.2011 but it was never supplied to the appellant.  That only on 20.12.2012 when applicant asked his counsel at Hisar with regard to the status of the case then he informed that case has already been decided long back against them.  The appellant asked the counsel about the remedy available to him against the dismissal of this case.  He was informed that now the appeal can filed in the Hon’ble State Commission, Haryana.  That in between there is a delay of 566 days which is inadvertent and beyond the control of the applicant therefore, the same may kindly be condoned, in the interest of justice, other the applicant will suffer an irreparable loss”.

  

7.      Petitioner has not given any satisfactory explanation for not getting information regarding

order of District Forum from 18.7.2011 to 20.12.2012.  Order of District Forum clearly reveals

that order was passed after hearing Counsel for the petitioner.  No reasons have been given by

the petitioner why no inquiry was made by the petitioner from his Counsel or from office of the

District Forum regarding disposal of complaint for a long period of 17 months.  Not only this,

when petitioner came to know about judgment of District Forum on 20.12.2012, petitioner

should have filed appeal immediately, whereas appeal was filed before State Commission on

21.3.2013 meaning thereby, after 3 months and no explanation explaining delay of 3 months was

given after getting knowledge of the order.  Learned State Commission has rightly dismissed

appeal as barred by 566 days and we do not find any illegality, irregularity or jurisdictional error

in the impugned order.

8.        As there was inordinate delay of 566 days, this delay could not have been condoned in the

light of the judgments passed by the Hon’ble Apex Court and the National Commission in

(1) (2010) 5 SCC 459 – Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial

Development Corporation and Anr.; (2) (2012) 3 SCC 563 – Office of The Chief Post Master

General and Ors. Vs. Living Media India Ltd. and Anr. and (3) 2012 (2) CPC 3 (State

Commission) – AnshulAggarwal Vs. New Okhla Industrial Development Authority.

9.        Consequently, revision petition filed by the petitioner is dismissed at admission stage with

no order as to costs.   

..………………Sd/-……………

( K.S. CHAUDHARI, J)

 PRESIDING MEMBER 

..………………Sd/-……………

( DR. B.C. GUPTA )

 MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI        REVISION PETITION NO.   2504 OF 2008  (From the order dated 11.04.2008 in Appeal No.961/2006 of the M.P. State Consumer Disputes Redressal Commission, Bhopal)

J.P. Dwellings Pvt. Ltd. Through Director Jitendra Singh Parihar S/o Shri R.B. Prihar R/o B-7, Chhatrasal Nagar, Phase I, Raisen Road, Bhopal

… Petitioner/Opp. Party (OP)

Versus

P.K. Raikwar S/o Dr. L.P. Raikwar R/o J-93, Harshwardhan Nagar, Bhopal

                                                        … Respondent/Complainant

BEFORE

 HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

 HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioner      :  NEMO

For the Respondent  : Mr. Ravindra Bana, Advocate 

PRONOUNCED ON         30 th     August ,     2013

 

O R D E R

  PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

This revision petition has been filed by the Petitioner/OP against the order dated

11.4.2008 passed by the M.P. State Consumer Disputes Redressal Commission, Bhopal (in short,

‘the State Commission’) in Appeal No. 961/2006 – P.K. Raikwar Vs. J.P. Dwellings Pvt. Ltd. by

which, while allowing appeal, order of District Forum dismissing complaint was set aside. 

2.       Brief facts of the case are that complainant/respondent entered into an agreement with

OP/petitioner for purchase of a duplex Bungalow and paid Rs.25,000/- on 17.11.2003 and

Rs.3,00,000/- on 20.12.2003 and rest of the amount of Rs.3,75,000/- was to be paid later on. As

OP neither completed the construction, nor returned money, alleging deficiency on the part of

OP, complainant filed complaint before District Forum.  OP resisted complaint and submitted

that after completion of structure, OP contacted complainant, but he did not show any interest in

taking possession and denying any deficiency in service, prayed for dismissal of

complaint.  Learned District Forum after hearing both the parties dismissed complaint and

further opined that if the complainant wants to get his money back with interest then District

Forum has no jurisdiction for grant of such relief.  Respondent filed appeal before State

Commission and learned State Commission vide impugned order allowed appeal and directed

petitioner to refund Rs.3,25,000/- along with 9% p.a. interest from the date of complaint till

payment against which, this revision petition has been filed. 

3.       Neither petitioner nor his Counsel appeared even after service.  Heard learned Counsel for

the respondent and perused record. 4.       Order sheet dated 4.7.2008 of this Commission reveals that revision petition was admitted

only to the extent of award of interest. It further revealed that Counsel for the petitioner apprised

that amount of Rs.3,25,000/- will be remitted to respondent by bank draft within 4 weeks and

learned Counsel for the respondent admitted that this amount has been received by respondent on

23.12.2008.  Now, the short question to be decided in this case is whether; award of 9% p.a.

interest from the date of filing complaint i.e. 7.6.2005 till realization is proper or not.

 

5.       Perusal of record clearly reveals that respondent deposited Rs.25,000/- on 17.11.2003 and

Rs.3,00,000/- on 20.12.2003 and learned State Commission has allowed 9% p.a. interest on this

amount from 7.6.2005 i.e. from the date of filing complaint. Thus, it becomes clear that learned

State Commission has not even allowed interest from the date of making payment and already

complainant/respondent has suffered loss of interest from the date of making payment till date of

filing of complaint.  Learned State Commission has allowed interest only @ 9% p.a., which

cannot be said to be excessive and in such circumstances; impugned order does not call for any

interference, as we do not find any illegality, irregularity or jurisdictional error in the impugned

order.

 

6.       Consequently, revision petition filed by the petitioner is dismissed with no order as to

costs. ..………………Sd/-……………( K.S. CHAUDHARI, J)

 PRESIDING MEMBER 

..……………Sd/-………………

( DR. B.C. GUPTA )

 MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI        REVISION PETITION NO.   4306 OF 2012  (From the order dated 17.08.2012 in Appeal No. 206/2011 of the Karnataka State Consumer Disputes Redressal Commission, Bangalore)

 

Mr. P.J. Joseph S/o Late Mr. P.P. Joseph R/at No.866, 5th Cross, Vijaya Bank Layout, Bilekahalli Bangalore – 560076 Karnataka

… Petitioner/Complainant

Versus

1. M/s. Aratukulam A Regd. Partnership Firm No.739, Singasandra Hosur Road, Adjacent to Clover Let Show-Room Behind CITI Bank ATM, Bangalore – 560068 Karnataka State

2. Smt. Sunitha Tony, Partner A Regd. Partnership Firm No.739, Singasandra Hosur Road, Adjacent to Clover Let Show-Room Behind CITI Bank ATM, Bangalore – 560068 Karnataka State

3. M/s. Tony Vincent, Partner M/s. Aratukulam A Regd. Partnership Firm No.739, Singasandra Hosur Road, Adjacent to Clover Let Show-Room Behind CITI Bank ATM, Bangalore – 560068 Karnataka State

… Respondents/Opp. Parties (OP)          

BEFORE

  HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

 HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioner      :  Mr. B.S. Sharma, Advocate

 

PRONOUNCED ON       30 th   August ,     2013  

O R D E R 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER  

This revision petition has been filed by the Petitioner/Complainant against the order dated

17.08.2012 passed by the Karnataka State Consumer DisputesRedressal Commission, Bangalore

(in short, ‘the State Commission’) in Appeal No. 206/2011 – P.J. Joseph Vs.

M/s. Aratukulam & Ors. by which, while dismissing appeal, order of District Forum dismissing

complaint was upheld. 

2.       Brief facts of the case are that complainant/petitioner entered into an agreement with

OP/Respondent-builder for purchase of a flat and paid a sum of Rs. 13,00,000/-.  As per

agreement, OP was to give possession of the flat within 24 months’ time i.e. before 31.7.2007

and as there was delay in delivering the possession, complainant suffered loss of Rs.15,000/- per

month and claimed Rs.5,10,000/- from the OP.  It was further submitted that complainant is

ready to pay balance amount of Rs.1,60,000/-, but OP has not come forward to get the sale deed

registered and in such circumstances, alleging deficiency on the part of OP, complainant filed

complaint before District Forum. OP resisted complaint and admitted that possession was to be

delivered to the complainant within 24 months, but complainant did not pay amount of sale

consideration as per time schedule mentioned in the agreement and prayed for dismissal of

complaint.  Learned District Forum after hearing both the parties dismissed complaint against

which, appeal filed by the petitioner was dismissed by learned State Commission vide impugned

order against which, this revision petition has been filed. 

3.       Heard learned Counsel for the petitioner at admission stage and perused record. 

4.       Learned Counsel for the petitioner submitted that as there was delay in handing over

possession of the flat, petitioner was entitled to receive compensation, but learned District Forum

committed error in dismissing complaint and learned State Commission further committed error

in dismissing appeal; hence, revision petition be admitted. 

5.       Perusal of District Forum order reveals that petitioner was to make payment as per time

schedule mentioned in the agreement, but petitioner has not filed proof of payment of amount as

per time schedule when petitioner  himself has committed default in making payment as per time

schedule, respondent was not under an obligation to handover possession within the stipulated

period and in such circumstances, petitioner was rightly held not entitled to get compensation @

15,000/- per month on account of late delivery of possession.  Learned District Forum has not

committed any error in dismissing complaint and learned State Commission has not committed

error in dismissing appeal. 

6.       We do not find any illegality, irregularity or jurisdictional error in the impugned order,

which calls for any interference and revision petition is liable to be dismissed. 

7.       Consequently, revision petition filed by the petitioner is dismissed at admission stage with

no order as to costs

        ..………………Sd/-……………( K.S. CHAUDHARI, J)

 PRESIDING MEMBER 

..………………Sd/-……………

( DR. B.C. GUPTA )

MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

 REVISION PETITION NO.   3272 OF 2012 (From the order dated 07.05.2012 in First Appeal No. 1839/2008of Haryana State Consumer Disputes Redressal Commission) Rita Dhingra w/o Shri Ashok Dhingra r/o House Number 1562, Sector – 16, Faridabad

...  Petitioner 

Versus 1.  Haryana Urban Development Authority Through its Chief Administrator, Panchkula 2.  Haryana Urban Development Authority Through its Estate Officer, Karnal

… Respondent(s) BEFOREHON’BLE MR. JUSTICE K.S. CHAUDHARI,PRESIDING MEMBERHON’BLE DR. B.C. GUPTA, MEMBER APPEARED AT THE TIME OF ARGUMENTS For the Petitioner(s)   Mr. Ashok Dhingra, ARFor the Respondent(s)   Mr. Sudhir Bisla, Advocate

 

PRONOUNCED   ON :   3 rd   SEPTEMBER     2013  O R D E R PER DR. B.C. GUPTA, MEMBER 

        This revision petition has been filed under section 21(b) of the Consumer Protection Act,

1986 by the petitioner against the impugned order dated 07.05.2012, passed by the Haryana State

Consumer Disputes Redressal Commission (for short ‘the State Commission’) in FA No.

1839/2008, “Rita Dhingra versus HUDA & Anr.”, vide which the order dated 26.08.2008, passed

by the District Consumer Disputes Redressal Forum, Karnal in complaint no. 613/2005 was

upheld, but the direction given in the order of the District Forum for the refund of the amount

deposited by complainant was also set aside.  The District Forum had dismissed the consumer

complaint in question, as being time barred, but allowed refund of the amount deposited with the

respondent / OP. 

2.     Brief facts of the case are that the complainant was allotted plot no. 175 in sector 5, Urban

Estate Karnal on 07.04.92 for Rs.3,09,600/-.  The complainant deposited 25% of the total amount

and the remaining amount was to be deposited in instalments.  The complainant deposited the

first instalment of Rs.38,700/- in the year 1993 and thereafter, they did not deposit any

instalment taking the plea that the respondent/OP had not delivered the possession of the plot to

them.  The respondent issued a show-cause notice to them on 7.12.94, asking them to explain,

why the delayed interest and penalty may not be imposed upon them.  Thereafter, there was

correspondence between the complainants and respondents, but the complainant did not deposit

the amount demanded by the respondent.  The complainant filed the consumer complaint in

question in the year 2005, stating therein that the OP should be directed to hand over physical

possession of the plot in question and should be asked to accept the principal amount of balance

cost, enhancement compensation and some other charges, but should be directed to waive off

interest and penalty on the amounts so demanded.  The District Forum dismissed the complaint

being time barred, but directed that the OP should refund the amount deposited by the

complainant within a period of 30 days of the receipt of the order.  This order was challenged in

appeal before the State Commission.  The State Commission vide impugned order upheld the

order of the District Forum, but also stated that the direction to refund the amount is set aside.  It

is against this order that the present petition has been filed. 

3.     It was contended by the authorised representative of the petitioner at the time of arguments

that he had paid 25% of the price of the plot at the time of allotment and the balance money was

to be paid in six instalments to the OP.  However, the allottee had paid only one instalment and

thereafter did not deposit any money.  He has drawn our attention to notice dated 7.12.1994

issued under section 17(1) of the Haryana Urban Development Authority Act, 1977 by the

respondent/OP, in which the petitioner has been asked to remit the amount of instalment along

with interest for the delay in depositing the instalment and a penalty of Rs.3,870/-.  Another

show-cause notice was issued on 3.7.98, asking them to show cause why a penalty of Rs.32,640/-

may not be imposed on them.  The authorised representative of the petitioner stated that since the

possession of the plot was not delivered to them by the OP, they had not deposited the amount, in

question. He stated, however, that they were prepared to deposit the requisite amount for the plot

including the enhanced compensation but the penalty, interest and non-construction fee etc.

should be waived off.  He further stated that they had tried to remit the amount to OP by means

of demand draft, but this was returned by them. 

4.     Learned counsel for the OP stated that the petitioner / complainant had failed to deposit the

necessary amounts as per the terms and conditions of the allotment letter in time.  Even the first

instalment was not paid in time.  OP had offered possession of the plot too in the year 1995, but

the possession was never taken.  Further, the amounts mentioned in the demands raised by the

OP from time to time, were never deposited by the petitioner.  The learned counsel further stated

that the complaint in question was hopelessly time barred, as it had been filed after a period of 11

years from the date of cause of action and the complaint had been rightly dismissed by the

District Forum and the State Commission.  Learned counsel further stated that the Estate Officer,

HUDA, Karnal had sent letter to the petitioner on 29.03.2005, giving them the last opportunity to

deposit the overdue amount within a period of 7 days.  In response to this letter, the petitioner

sent a reply on 19.04.2005, stating that the HUDA was duty bound to resume the plot and refund

the amount deposited by him after the issue of show cause notice dated 07.12.1994.  However,

since HUDA had not given him physical possession, they had no right to charge any interest

etc.  The learned counsel further stated that HUDA had not challenged the order of the District

Forum because the said order was in their favour.  He stated that the OP was prepared to refund

the amount deposited by the petitioner. 

5.     We have examined the entire material on record and given a thoughtful consideration to the

arguments advanced before us. 

6.     From the record of the case, the facts of the case are very clear that the plot in question was

allotted to the petitioner in the year 1992, but after depositing the initial 25% amount and one

more instalment, further money was never deposited by the petitioner with the OP. Despite issue

of show-cause notices to the petitioner under the relevant provisions of the HUDA Act, 1997, the

overdue amount was never deposited with the OP.  In his letter dated 19.04.2005 sent by the

petitioner in response to letter dated 29.03.2005 from the OP, the petitioner has clearly stated that

after the issue of show cause notice 07.12.1994, HUDA was duty bound to resume the plot and

refund the money deposited by them with HUDA. 

7.     Further, it is very clear that the consumer complaint in question has been filed in the year

2005, meaning thereby that the same was not filed within the statutory time limit of two years

from the cause of action as laid down under section 24(A) of the Consumer Protection Act,

1986.  It has been rightly observed by the District Forum and State Commission that if the cause

of action is taken to be the date of first show cause notice dated 07.12.1994, the complaint had

been filed after a period of 11 years.  There is no convincing explanation or justification shown

for the delay in filing the appeal; hence the learned State Commission and District Forum were

right in taking the view that the complaint is time barred and deserved to be dismissed on this

ground alone. 

8.     In so far as the refund of the amount deposited by the petitioner with the OP is concerned,

the District Forum in their order ordered for the refund of the said amount within a period of 30

days of the receipt of the copy of the order, failing which the said amount shall carry interest @

10% p.a. from the date of the order till payment.  The State Commission while passing the

impugned order, decided to set aside the direction for the refund of the amount.  

9.     In normal course, in similar cases, when a plot is surrendered or cancelled for non-payment

of outstanding dues, the amount deposited by an allottee is refunded after deduction of certain

amount of money as laid down in the terms and conditions of the allotment.  The District Forum

have observed in their order that “Had the OP taken action against the complainant at the earliest

within specified period as provided in the show-cause notices, the situation would have been

different as after deducting the reasonable expenses, OP could have refunded the remaining

amount to the complainant.”  However, while ordering relief, the learned District Forum stated

that the amount deposited by the complainant with the OP should be refunded meaning thereby

that the entire amount should be refunded.  The OP did not file any appeal against this order

rather at the time of hearing before us, the learned counsel for the OP stated that they are

prepared to refund the amount in question as per the order of the District Forum.  In the light of

this situation, the order of the State Commission setting aside the direction for the refund of the

amount is not justified.  The complainant is held to be entitled for the refund of the amount

deposited with the OP as admitted by the OP itself. 

10.   In the light of this discussion, while upholding the order of the State Commission

dismissing the complaint on the ground of being time barred, we feel it necessary to modify the

findings of the State Commission that the amount deposited by the petitioner with the OP should

be refunded to them as ordered by the District Forum.  This revision petition is, therefore, partly

allowed with the direction that amount deposited by the petitioner with the OP shall be refunded

to her in accordance with the order passed by the District Forum.  There shall be no order as to

costs.Sd/-(K.S. CHAUDHARI J.)PRESIDING MEMBER  Sd/-(DR. B.C. GUPTA)MEMBERRS/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI       REVISION PETITION NO.   2940 OF 2013 (From the order dated 26.03.2013 in Appeal No.131 of 2008 of the Punjab State Consumer Disputes Redressal Commission, Chandigarh)

Balbir Singh S/o Sh. Ranjit Singh R/o H. No. 5471/3, Modern Housing Complex, Mani Majra, Chandigarh – 160101

… Petitioner/Complainant

                                                   Versus1. The Chief Administrator, Punjab Urban Development Authority (PUDA) Greater Mohali Urban Development Authority (GMUDA) PUDA Bhawan, Phase – IX, S.A.S. Nagar, Mohali.                              

2. The Estate Officer, Punjab Urban Development Authority (PUDA) Greater Mohali Urban Development Authority (GMUDA) PUDA Bhawan, Phase – IX, S.A.S. Nagar, Mohali.

                                                … Respondents/Opp. Parties (OP)

 

BEFORE

     HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

     HON’BLE DR. B.C. GUPTA, MEMBER

 

For the Petitioner           :        Mr. Balbir Singh, In person                                

PRONOUNCED ON 5 th   September ,     2013

O R D E R 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER  

This revision petition has been filed by the petitioner/complainant against the order dated

26.03.2013 passed by the Punjab State Consumer DisputesRedressal Commission, Chandigarh

(in short, ‘the State Commission’) in Appeal No. 131/2008 – Balbir Singh Vs. Chief

Administrator, Punjab Urban Dev. Authority & Anr. by which, while dismissing appeal, order of

District Forum dismissing complaint was upheld. 

2.      Brief facts of the case are that complainant/petitioner vide application no. 235 applied for

allotment of commercial booth in Sector-71, SAS Nagar, Mohali. As there was also provision to

submit the application under Tatkaal scheme,

complainant submitted  application under Tatkaal scheme.  On the day of draw, complainant was

allowed to exercise option in Sector 70 and complainant was asked to visit the vacant booth sites

in Sector 70, but no site plan was made available to the complainant before, or at the time of

allotment. Complainant visited site and selected site no. 10, which was between site nos. 9 & 11,

where the booths were already constructed.  Complainant selected site no. 10 and intimated to

the OP/respondent and letter of intent for commercial booth no. 10 in Sector 70 was issued by

OP to complainant on 29.10.2002.  Complainant deposited money from time to time. After

allotment of booth, complainant came to know that another site of booth no. 10A was created by

OP adjacent to booth no. 10 allotted to the complainant.  Booth no. 10A has already been

constructed by the allottee resulting into considerable decrease in front of booth no.

10.  Inspite of protests from the complainant, his grievances were not remedied and in such

circumstances, complainant started construction. OP levied compounding fee. As booth was not

suitable to the complainant, he abandoned construction. Alleging deficiency on the part of OP,

complainant filed complaint for refund of extra amount charged from him along with interest

with a prayer to allot alternative booth at appropriate site. OP resisted complaint and submitted

that complaint was not maintainable, as complainant was not a consumer and further submitted

that complaint was barred by limitation.  It was further submitted that booth was allotted to the

complainant as per his choice and he deposited amount after inspecting the site and booth no.

10A already existed before allotment of booth no. 10 to the complainant and as such, there was

no deficiency and prayed for dismissal of complaint.  Learned District Forum after hearing both

the parties dismissed complaint against which, appeal filed by the petitioner was dismissed by

learned State Commission vide impugned order against which, this revision petition has been

filed.

3.      Heard the petitioner in person at admission stage and perused record. 

4.      Petitioner submitted that he was consumer within the purview of C.P. Act and complaint

was filed within limitation.  Even after proving the deficiency, the learned District Forum

committed error in dismissing complaint and learned State Commission further committed error

in dismissing appeal; hence, revision petition be admitted. 

5.      Perusal of record clearly reveals that commercial booth was allotted to the petitioner

meaning thereby booth was allotted for commercial purpose. Petitioner has nowhere stated in the

complaint that booth was taken by him for earning his livelihood by means of self-

employment.  In such circumstances, complainant does not fall within the purview of consumer

under the C.P. Act and complaint was not maintainable before District Forum. 

6.      Admittedly, booth was allotted on 29.10.2002 and last payment was deposited on

18.7.2003, whereas complaint was filed on 14.5.2007 without any application under Section 24-

A of the C.P. Act, which was patently time barred and in such circumstances, District Forum and

State Commission in the light of judgment of Hon’ble Apex Court in the case of JT 2009 (4)

SCC – State Bank of India Vs. M/s. B.S. Agricultural Industries and IV (2010) 191 (SC)

– V.N. Shrikhande   ( Dr. )  Vs. Anita   Sena   Fernandes   has not committed any error in dismissing

complaint being barred by limitation. 

7.      We do not find any illegality, irregularity or jurisdictional error in the impugned order and

revision petition is liable to be dismissed. 

8.      Consequently, revision petition filed by the petitioner is dismissed at admission stage with

no order as to costs.                                                                                       

                                      ..………………Sd/-……………( K.S. CHAUDHARI, J)

 PRESIDING MEMBER 

..……………Sd/-………………

( DR. B.C. GUPTA )

 MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI        

REVISION PETITION NO.   2383 OF 2013  (From the order dated 16.01.2013 in Appeal No. 3663/2012 of the Gujarat State Consumer Disputes Redressal Commission, Ahmedabad)

 

1. Jyotiben Rajnikant Halani2. Rajnikant Jethalal Halani Both having add. At: Shri Harihar Co. Op. Hou. Soc. Ltd., Plot No. 25/B-1, Kalavad Road, Rajkot

… Petitioners/Complainants                                                   Versus

Gordhanbhai Ramjibhai Pipalva Add: Sheri no. 3, Chitrakunj Society Akshar Road, Nr. Panchvati Society, Rajkot

…Respondent/Opp. Party (OP)

 

BEFORE

 

     HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

     HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioners     :     Mr. Varshal M. Pancholi, Advocate

PRONOUNCED   ON     6 th   September,     2013

 O R D E R 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER          

This revision petition has been filed by the petitioners/complainants against the order

dated 16.01.2013 passed by the Gujarat State Consumer DisputesRedressal Commission,

Ahmedabad (in short, ‘the State Commission’) in Appeal No. 3663/2012  –

Smt. Jyotiben Rajnikant Halani & Anr. Vs. Shri GordhanbhaiRamjibhai Pipalva by which, while

dismissing appeal, order of District Forum dismissing complaint was upheld. 

2.      Brief facts of the case are that complainants/petitioners purchased house from the

OP/respondent constructed on sub plot No. 25/B-1 by registered Sale Deed dated 25.3.2010.  At

the time of purchase of house, OP told to the complainant that construction of the house is of

good quality, whereas construction was of poor quality and there were various types of defects in

the constructed house. It was further alleged that inferior material was used. OP has committed

deficiency in service in selling house of inferior quality.  Alleging deficiency on the part of OP,

complainant filed complaint before District Forum.  OP resisted complaint and submitted that

there is no relationship between the complainant-OP that of consumer-trader.  It was further

stated that there were no defects in the house and inferior material was not used and prayed for

dismissal of complaint.  Learned District Forum after hearing both the parties dismissed

complaint. Petitioner filed appeal before the learned State Commission, which was dismissed by

learned State Commission vide impugned order against which, this revision petition has been

filed. 

3.      Heard learned Counsel for the petitioner at admission stage and perused record.    4.      Learned Counsel for the petitioner submitted that respondent was a builder and sold house

of inferior construction and thus, committed deficiency in service; even then, learned District

Forum committed error in dismissing complaint and learned State Commission committed error

in dismissing appeal; hence, revision petition be admitted.

 

5.      Perusal of record clearly reveals that respondent has not sold the house to the petitioner in

the capacity of any contractor or developer, but has sold the house constructed by him for his

own residence.  Completion certificate of the house was issued on 25.3.2008, whereas house has

been sold by registered Sale Deed dated 25.3.2010.  In such circumstances, there cannot be any

relationship of service provider between the petitioner and the respondent and learned District

Forum has not committed any error in dismissing complaint.

6.      As far as quality of construction is concerned, learned District Forum came to the

conclusion that petitioner failed to prove inferior quality of construction. Learned State

Commission also affirmed this finding and we do not find any illegality, irregularity or

jurisdictional error in the impugned order which calls for any interference.

 

7.      Consequently, revision petition filed by the petitioner is dismissed at admission stage with

no order as to costs.

 ..………………Sd/-……………( K.S. CHAUDHARI, J)

 PRESIDING MEMBER 

 ..………………Sd/-……………

( DR. B.C. GUPTA )

 MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI       REVISION PETITION NO.   1579 OF 2013 (From the order dated 18.02.2013 in Appeal No. 1088/2011 of the Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad)

With IA/2757/2013 (Stay)

 

1. R. Suri Babu S/o Sri Satyanarayana Managing Director M/s. Raja Constructions & Infrastructures R/o Flat No. 23, Lakshmi Gayatri Enclave Pragati Nagar R.R. District (A.P.)2. Y. Nagesh Babu S/o Sri Seetharamaswamy Managing Partner M/s. Raja Constructions & Infrastructures R/o Flat No. 502, Sai Mayuri Chaitanya Estates MIG 515, 516, KPHB Colony IV Phase Kukatpally, R.R. District (A.P.)

…Petitioners/Opp. Parties (OP)        Versus

Abhishek Govi S/o Sri M.N. Govil Employee R/o Flat No. 203, Sai Nilayam Apts Kondapur, Kothaguda, R.R. District, Andhra Pradesh.

…Respondent/Complainant

 

BEFORE

     HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

     HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioners       :   Mrs. Radha, Advocate

PRONOUNCED ON 12 th   September ,     2013

 O R D E R 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

          This revision petition has been filed by the petitioners/OP against the order dated

18.2.2013 passed by the Andhra Pradesh State Consumer DisputesRedressal Commission,

Hyderabad (in short, ‘the State Commission’) in Appeal No. 1088/2011

– Abhishek Govil Vs. R.Suri Babu & Anr. by which, while allowing appeal, order of District

Forum dismissing complaint was set aside and complaint was allowed. 

2.      Brief facts of the case are that complainant/respondent entered into an agreement to

purchase flat No. 109 in Block-C Raja’s Sunrise Height from OP/petitioner for a sum of

Rs.24,00,000/- out of which, complainant paid Rs.25,000/- by cheque dated

10.8.2008.  Complainant also paid Rs.10,75,000/- loan taken from LIC to the OP.  Complainant

entered into an agreement of construction with the OP for semi-finished flat and this document

was registered on 26.11.2008.  OP failed to complete the semi-finished flat and permitted

conversion of the residential project into commercial complex and later on handed over Block–C

of the building to M/s. Gayatri Education Society for running Boys Hostel and did not handover

flat to the complainant.  On demand made by the complainant, OP agreed to return total

Rs.12,28,615/- including Rs.11,00,000/- received  and issued  two cheques for Rs.50,000/- and

Rs.1,50,000/- which were dishonoured.  Alleging deficiency on the part of OP/complainant filed

complaint before District Forum.  OP resisted complaint and submitted that complainant is not

entitled to any relief without cancellation of agreement of construction dated 26.11.2008. It was

further alleged that District Forum had no jurisdiction to entertain the complaint. It was further

alleged that complainant ought to have filed suit for recovery of the amount or specific

performance of the agreement and complaint filed by the complainant is not maintainable and

prayed for dismissal of complaint.  Learned District Forum after hearing both the parties,

dismissed complaint in view of the agreement dated 5.3.2010 and 10.6.2010.  Appeal filed by the

petitioner was allowed by learned State Commission vide impugned order by which petitioner

was directed to deposit before District Forum the amount in terms of agreement dated 5.3.2010

and respondent was permitted to withdraw the amount after executing deed cancelling the

agreement in respect of aforesaid flat no. 109 in Block C in Raja’s Sunrise Height against which,

this revision petition has been filed by the petitioner/OP. 

3.      Heard learned Counsel for the petitioner at admission stage and perused record. 

4.      Learned Counsel for the petitioner submitted that complaint was not maintainable before

District Forum and learned District Forum rightly dismissed the complaint, but learned State

Commission has committed error in allowing appeal; hence, revision petition be admitted. 

5.      Perusal of record clearly reveals that petitioner has not carried out construction as per

agreement dated 26.11.2008 and petitioner converted residential project into commercial

complex and handed over Block-C of the building to M/s. Gayatri Education Society for Boys

Hostel. Thus, it becomes clear that petitioner failed to handover flat to the respondent and

petitioner agreed to pay the amount received from respondent vide agreement dated 5.3.2010 and

10.6.2010 and cheques issued by petitioner were also dishonoured.  In such circumstances,

District Forum had jurisdiction and District Forum committed mistake in dismissing complaint

for want of jurisdiction. 

6.      Learned State Commission while deciding appeal rightly observed as under:21.     In terms of Exs.A2 and A3 the respondents agreed to pay back amount received from the appellant and the appellant was required to cancel the sale deed executed by the respondents and handover vacant possession of the flat to the respondents. The leasing out of block-C to M/s Gayatri Educational Society by the respondents does not disentitle the appellant from invoking jurisdiction of consumer forum, for the respondents entered into lease agreement with M/s Gayatri Educational Society on their failure to carry out the construction of flat and provide amenities thereto. Even if it is assumed that the appellant along with other flat owners authorised the respondents to let block-C of the building to M/s Gayatri Educational Society, it would not in any manner affect the right of the appellant to clutch the jurisdiction of the Consumer Forum.

 

                   22.     Having agreed to return the amount mentioned in Exs.A2, A3 and A4, the respondents failed to keep their promise and their failure to return the amount to the appellant constitutes deficiency in service on the part of the respondents. The respondents are liable to pay the amount in terms of agreement dated 5.3.2010. The appellant shall execute deed cancelling the agreement dated 26.11.2008.

 

7.      We do not find any illegality, irregularity or jurisdictional error in the impugned order and

revision petition is liable to be dismissed. 

8.       Consequently, revision petition filed by the petitioner is dismissed at admission stage with

no order as to costs ..………………Sd/-……………( K.S. CHAUDHARI, J)

 PRESIDING MEMBER 

..………………Sd/-……………

( DR. B.C. GUPTA )

 MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHIREVISION PETITION NO.2810 OF 2013(From the order dated 11.10.2012 in  F.A. No.615/2011 of the

Haryana State Consumer Disputes Redressal Commission, Panchkula)

WITH I.A. NO.4826, 4827 & 4828 OF 2013

(STAY, DELAY & EXEMPTION FOR FILING ADDL. DOCS.)

 1. M2K Country Heights Dharuhera, E-13/29, Harsha Bhawan, Connaught  Place, New Delhi2.  M2K Country Heights, Marketing Office B-86, Sector 50, May Field Garden, Gurgaon, Haryana Represented by M/s M2K Infrastructure Pvt. Ltd., E-13/29, Ist Floor, Harsha Bhawan, Connaught Circus, New Delhi – 110001 through its authorized signatory

.….. PETITIONER (S)

                                                 Versus

Rajesh Kumar s/o Shri Zile Singh r/o H. No. 36/2, Hans Enclave, Near Rajeev Chowk, Gurgaon, Haryana

....... RESPONDENT 

BEFORE:

HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBERHON’BLE MR.SURESH CHANDRA, MEMBER

For the Petitioners           :  Mr. Rohit Sharma, Advocate

PRONOUNCED ON     :     19 th       SEPTMEBER,     2013

                                                  ORDER

JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

          This revision is directed against the impugned order of the State Commission dated

11.10.2012 whereby the State Commission dismissed the appeal preferred by the petitioner

against the order of the District Forum Gurgaon dated 24.03.2011 which reads as under:

“Hence, the complainant is entitled to refund of his amount of Rs.3,00,000/- deposited with the opposite party on 16.01.2007 vide receipt dated 19.01.2007 with interest at the rate of 9% per annum from the date of deposit till its realization. The complainant is also entitled to a compensation  of Rs.20,000/- for his harassment and mental agony caused by the opposite party.  He is also entitled to litigation charges of Rs.5000/- from the opposite party.  The opposite party is directed to comply the order within 30 days”.

2.       Briefly stated the facts relevant for the disposal of this revision are that the respondent /

complainant filed a consumer complaint against the petitioner / opposite party alleging that lured

by the advertisement / brochures of the petitioner company, the complainant booked a flat in the

proposed project of the petitioner, namely, M2K Country Heights Dharuheda on payment of

Rs.3,00,000/-.  Pursuant to the booking, the complainant was allotted apartment no. E-1108,

Tower No.E, 11th Floor measuring 1425 sq. ft @ 1495 per sq. ft.  It was alleged in the complaint

that the complainant visited  the office of the petitioner / opposite party on several occasions to

find out about the location and progress of the project but no information was given to him.  The

complainant even sent written reminders to the opposite party to find out about the progress of

the project but to no avail.  It was also alleged that opposite party had taken a booking amount of

Rs.3,00,000/ without having any CLU or license to construct.  Claiming this to be deficiency in

service, the complaint was filed.  The petitioner / opposite party contested the complaint

claiming it to be false and frivolous.  It was further admitted that the complainant vide his

application dated 16.01.2007 booked an apartment in the proposed housing project “M2K

Country Heights” at Dharuheda, Haryana.  The complainant was informed about the

specifications including tentative super area, basic sale price as also the tentative date of delivery

of possession vide letter dated 17.05.2007 and the allotment letter was issued in favour to the

respondent complainant on 14.08.2007.  It was also pleaded that the construction of the

residential complex commenced on 21.09.2007 after obtaining requisite approvals and

permissions from the competent authority.  According to the petitioner, the possession of the

apartment is to be delivered  within the parameters of the terms and conditions of the agreement

and that there is no deficiency on the part of the opposite party and on the contrary, complainant

has defaulted in making payment of instalment as per the agreed payment schedule, therefore, his

allotment / booking is liable to be cancelled.

3.       The District Forum Gurgaon on consideration of the evidence allowed the complaint in

above noted terms.

4.       Feeling aggrieved by the orders of the District Forum, the petitioner preferred an appeal

before the State Commission and State Commission after hearing the parties returned the

concurrent finding of fact and dismissed the appeal with following observations:

“After hearing the counsel for parties and going through facts and circumstances of the case, we are of the opinion that complainant vide his application dated 16.01.2007 booked an apartment with OP in their project M2K Country Heights at Dharuheda, Haryana on payment of Rs.3,00,000/-.  The complainant was not satisfied with their project as he could not find its whereabouts at the spot.  Moreover, the OPs alleged that they started constructions from the competent authority but they failed to disclose it and show it to the complainant.  Hence, the OPs could not assure the complainant regarding status of their project by disclosing the factual position to complainant.  Thus, District Consumer Forum after considering each and every aspect of the case rightly allowed the complaint of the complainant.

        No ground to interfere with the impugned order is made out”.

5.       Learned counsel for the petitioner has assailed the impugned orders of the fora below

claiming that they have committed a grave error in failing to appreciate that the respondent

complainant is not a consumer as he  had booked a flat with the petitioner with a view to earn

speculative profits.  We do not find any merit in this contention for the reason that aforesaid plea

was not taken in the written statement and otherwise also, counsel for the petitioner has failed to

show us any evidence to indicate that the respondent complainant has booked the flat for

commercial purpose i.e. earning speculative profits.

6.       Secondly, it is contended that there is no deficiency of service on the part of the petitioner /

opposite party.  It is submitted by the learned counsel for the petitioner that fora below have

failed to appreciate that the petitioner had commenced construction after obtaining all necessary

sanctions from the concerned authorities in the year 2007 itself and the complainant / respondent

is himself guilty of failing to pay the instalments as per the agreement despite of several demand

notices sent by the petitioner.  In support of this contention, learned counsel for the petitioner has

drawn our attention to the copies of the communication purported to have been sent to the

respondent for execution of Apartment Buyer Agreement respectively dated 01.02.2008,

04.04.2008, 21.04.2008, 12.05.2008 & 05.06.2008.  Counsel has also drawn our attention to the

copies of the Allotment Advise-cum-Demand Note dated 14.08.2007 as also the reminders

calling upon the respondent to pay the outstanding dues respectively dated 01.05.2008,

15.05.2008, 02.06.2008, 16.06.2008, 01.07.2008, 03.07.2008, 28.07.2008 & 28.08.2008.  On the

basis of the above letters, it is urged that respondent himself is a defaulter.  Therefore, the

impugned orders holding the petitioner to be deficient in service are not sustainable.

7.       Before adverting to the submissions made on behalf of the parties, it would be useful to

have a look on the scope of the revisional jurisdiction of the National Commission.  The

revisional jurisdiction of National Commission flows from section 21 (b) of the Consumer

Protection Act and such powers can be exercised by the National Commission to revise the order

of the State Commission if the State Commission –

(i)      has exercised the jurisdiction not vested in it by law; or,

(ii)      has failed to exercised the jurisdiction vested in it; or,

(iii)     has acted in exercise of his jurisdiction illegally or with material irregularity.

          In the instant case, it is not the case of the petitioner that the State Commission has either

exercised a jurisdiction not vested in it or has failed to exercise the jurisdiction vested in

it.  Basic plea of the petitioner is that the impugned order of the State Commission is based on

incorrect appreciation of facts.  On perusal of the record, we find that both the foras below have

arrived at a concurrent finding by passing the reasoned order.  Therefore, we do find no reason to

interfere in the aforesaid finding of fact. 

8.       On perusal of the copy of the complaint annexed to the revision petition, it is clear that

main grievance of the complainant / respondent is that after booking a plot and paying

Rs.3,00,000/-, complainant visited the office of the petitioner on several occasions to find out

about the particulars and status of the proposed project but no information was given.  It is also

the case  of the complainant that he asked the respondent to convey him the date by which the

possession would be delivered but no response was received from the petitioner.  In response to

this allegation, petitioner has taken a plea in his written statement filed before the District Forum

that the tentative date of completion of the project was intimated to the respondent in the

application form sent alongwith the letter dated 14.08.2007.  We have perused the copy of the

application form sent alongwith the aforesaid letter wherein in the clause 41, the tentative date of

completion of construction of apartment is given as 36 months from the date of the

commencement of construction.  As per the written statement of OP filed in the District Forum,

the construction process started on 21.07.2007.  Therefore, as per the agreement construction

should have been completed by the year 2010.  The impugned order was passed on

11.10.2012.  Admittedly till then, the construction of the apartment was not complete, although

five years period from the date of commencement of construction had elapsed.  This by itself

amounts to the deficiency in service on the part of the petitioner builder.  Therefore, also the

impugned order of the State Commission cannot be faulted.  Otherwise also, both the District

Forum as well as the State Commission have returned a concurrent finding of fact after due

analysis of the evidence.  As such we find no reason to interfere with the impugned order in

exercise of the revisional jurisdiction under section 21 (b) of the Act.

9.       In view of the discussion above, we do not find any jurisdictional error, illegality or

material irregularity in the impugned order which may call for interference by this Commission

in exercise of the revisional jurisdiction.  Revision petition is, accordingly, dismissed.   

 

                                                        ………………………….Sd/-

     (AJIT BHARIHOKE, J)

      ( PRESIDING MEMBER)

 

                                                                 …………………………Sd/-

                                                         (SURESH CHANDRA)

                                                                             MEMBER

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI        

REVISION PETITION NO. 4168 OF 2012(From the order dated 28.07.2011in Appeal No. A/11/574 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai)

With IA/2681/2013 (Placing Addl. Documents)

 Gopinath Nagar “A” Co-op. Hsg. Society Ltd. Survey No. 36/A/4, Gopinath Nagar Kothrud Pune – 411 038, and Secretary Shri Sandeep Keshav Gawde, R/at: Flat No. 5 Bldg. No. 3 Gopinath Nagar Co-op. Hsg. Soc. Ltd. S. No. 36/A/4, Kothrud, Pune – 411038, Maharashtra

…Petitioner/Complainant       Versus

1. M/s. Nandan Builders A partnership firm registered under The Indian Partnership Act, its office at 2/29, Mukund Nagar, Pune – 411037, Maharashtra

2. Mr. Niranjan Padmakar Ray 2/29, Mukund Nagar Pune – 411037, Maharashtra

3. Balasahityalaya Trust A Public Trust registered under BPT Act, 1950, Registration No. F-838, Pune “Vedant:, 1015, Sadashiv Peth Pune – 411030, Maharashtra

…Respondents/Opp. Parties (OP)

 BEFORE

     HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

     HON’BLE DR. B.C. GUPTA, MEMBER

 

For the Petitioner      :      Mr. Arvind Avhad, Advocate

 

PRONOUNCED ON     25 th   September,     2013

 O R D E R 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER  

This revision petition has been filed by the petitioner/Complainant against the order dated

28.07.2011 passed by the Maharashtra State Consumer Disputes Redressal Commission,

Mumbai, (in short, ‘the State Commission’) in Appeal No. A/11/574 – Gopinath Nagar Vs. M/s.

Nandan Builders & Ors. by which, appeal filed by the complainant was dismissed at admission

stage.  

2.      Brief facts of the case are that complainant/petitioner filed complaint before District Forum

and prayed for direction to the OP/respondent to execute Deed of Convenience in favour of the

Complainant no.1/Society and further direction to OPs to complete the incomplete work and

further prayed for compensation along with interest.  Learned District Forum partly allowed the

complaint and directed OP to execute Conveyance Deed, but did not grant other reliefs against

which, appeal filed by the complainant/petitioner was not admitted against which, this revision

petition has been filed along with application for condonation of delay.

3.      Heard learned Counsel for the petitioner at admission stage and perused record. 

4.      Learned Counsel for the petitioner submitted that on account of financial crunch, revision

petition could not be filed in time; hence, delay in filing revision petition be condoned. 

5.      In the application for condonation of delay, period of delay to be condoned has not been

mentioned, but as per office report, there is delay of 372 days in filing revision petition.

Paragraph 2 of the application for condonation of delay runs as under:“2.     The petitioner states that the petitioner is a co-operative society and due to monetary difficulty petitioner could not file the present revision petition in this Hon’ble Commission well within time. As such, there is a delay caused in filing the present revision petition, which may kindly be condoned in the interest of justice”.

 

6.      The only ground for condonation of delay is that due to monetary difficulty revision

petition could not be filed in time. Apparently, this is no ground for condonation of delay.  Even

petitioner has not shown how much fund was required to file revision petition.  Not only this,

complaint was filed by petitioner along with 3 individuals, but this revision petition has been

filed only by the petitioner.  Nowhere it has been mentioned that rest of the complainants were

also not having sufficient funds for filing revision petition. 

7.         As there is inordinate delay of 372 days, this delay cannot be condoned in the light of the

judgments passed by the Hon’ble Apex Court and the National Commission in (1) (2010) 5 SCC

459 – Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation

and Anr.; (2) (2012) 3 SCC 563 – Office of The Chief Post Master General and Ors. Vs. Living

Media India Ltd. and Anr. and (3) 2012 (2) CPC 3 (State Commission) – Anshul Aggarwal Vs.

New Okhla Industrial Development Authority.

8.      As application for condonation of delay is liable to rejection, revision being barred by

limitation is liable to be dismissed.

9.      Consequently, revision petition filed the petitioner is dismissed as barred by limitation at

admission stage with no order as to costs.

 ……………Sd/-………………( K.S. CHAUDHARI, J)

 PRESIDING MEMBER 

..……………Sd/-………………

( DR. B.C. GUPTA )

 MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 4899 OF 2012

(Against the Order dated 25/10/2012 in R.P. No. 64/2011 of the Punjab State Consumer Disputes Redressal Commission, Chandigarh)

1. Taneja Developers and Infrastructure Ltd. & Ors. Regd. Office :9, Kasturba Gandhi Marg New Delhi-110001

...........Petitioner(s)

Versus

1. Devinder Singh S/o Rai Singh, R/o House No.192 Sector-65 Phase XI Mohali

2. Prabhjot Singh S/o Inder Pal Singh, R/o H. No.316 Sector-46A Chandigarh

...........Respondent(s)

 

BEFORE:  

HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

HON'BLE MR. SURESH CHANDRA, MEMBER

For the Petitioners                    :    Mr. Joydip Bhattacharya, Advocate

 

For the Respondents                :    Mr. Ajay Kumar, Advocate

   

PRONOUNCED   ON :       26 th   SEPTEMBER, 2013

 

ORDER

PER SURESH CHANDRA, MEMBER 

This revision petition is directed against the impugned order dated

25.10.2012 passed  by   the  State  Consumer  Disputes  Redressal  Commission,  Punjab,

Chandigarh in R.P. No.64 of 2011 whereby the State Commission dismissed the revision petition

filed by the petitioners against the order dated 7.10.2011 vide which the District Consumer

Disputes Redressal Forum, Mohali rejected the petitioners’ request for impleading

one Prabhjot Singh S/o Inder Singh as opposite party in the pending consumer complaint filed by

the respondent/complainant, Devinder Singh, before the District Forum. Thus vide its

impugned order, the State Commission also rejected the request for impleading the

said Prabhjot Singh as additional opposite party in the consumer complaint filed by the

respondent against the petitioners before the District Forum.

2.         Briefly stated, the facts of this case which are relevant for its disposal are that

plot No.1185 measuring 250 sq.yds. in sectors 117-119, Mohali was purchased by

one Chandrika Parsad on 17.6.2005 from the petitioners/opposite parties by paying Rs.3 lakhs.

This plot was thereafter re-sold firstly to one Jatinder Singh and thereafter to

aforesaid Prabhjot Singh from whom it was repurchased by the respondent/complainant. Before

purchasing the plot from Prabhjot Singh, the complainant/respondent approached the petitioners

who gave him statement of accounts dated 14.7.2010 in which it was shown that a balance

amount of Rs.1,68,750/- was due in respect of the plot in question. This amount was deposited

by the complainant with the OP Builders on 15.7.2010 for which he was issued a receipt.

Thereafter on receipt of transfer fee of Rs.25,000/- vide receipt dated 15.7.2010, the

petitioners/OP Builders transferred the plot in question in favour of the 

complainant vide transfer document dated 15.10.2010. Another due amount of Rs.1,62,500/- was

demanded by the petitioners from the complainant vide their letter dated 3.3.2011 which the

complainant could not pay due to financial difficulty and hence sought time for depositing it with

interest. For non-payment of this amount, it is alleged that the OPs/petitioners vide their letter

dated 20.6.2011 cancelled the allotment in favour of the complainant. The complainant,

therefore, knocked the door of the District Forum by filing the consumer complaint in question

seeking directions to the OPs/petitioners inter alia to withdraw the cancellation letter dated

20.6.2011.

3.         During the pendency of the complaint against them in the District Forum, the petitioners

filed an application dated29.9.2011 in which it was stated that  in the statement of accounts given

to the complainant by the petitioners, there is an entry showing credit of amount of Rs.6,87,500/-

to the account of the Prabhjot Singh, predecessor in interest of the complainant which actually

credited to the statement of accounts as a result of a clerical error in their office. It was stated by

the petitioners in their application before the District Forum that Cheque No.189560 for

Rs.6,87,500/- was received by the petitioners from one Ashish Bhalla qua plot No.1309 and was

duly credited to the account of said Ashish Bhalla on 25.8.2008. In view of this, it was alleged by

the petitioners that this amount was wrongly reflected to the credit of Prabhjot Singh in the

statement of accounts supplied to the respondent although this amount was never paid

by Prabhjot Singh and no receipt was ever issued by the petitioners to Prabhjot Singh qua this

amount. It was, therefore, requested by the petitioners/opposite parties in their application that

for proper and effective adjudication of the complaint, said Prabhjot Singh, be made a party. The

complainant opposed this application by filing a reply thereto stating that for their right, if any,

against the said PrabhjotSingh, the OP Builders should file a separate case against him

(Prabhjot Singh). The District Forum after hearing the parties dismissed the application vide its

order dated 7.10.2011. Aggrieved of this order, the petitioners challenged the same by filing

revision petition before the State Commission which was dismissed by the State Commission by

its impugned order which is now under challenge before us.

4.         We have heard Shri Joydip Bhattacharya, Advocate for the petitioners and Shri Ajay

Kumar, Advocate for the respondents. Learned counsel for the petitioners has contended that the

State Commission failed to appreciate the fact that the plot in question came to be transferred in

the name of the complainant/respondent based on a wrong entry in the statement of accounts in

favour of the said Prabhjot Singh. He submitted that  since the complainant, while filing the

complaint before the District Forum, has neither impleaded the said Prabhjot Singh as

party/respondent nor produced any receipt against the instalment amount of Rs.6,87,500/-, it

became necessary for the petitioners to make a request before the District Forum for

making  Prabhjot Singh as party/respondent for proper and effective adjudication of the case.

Citing the judgement of Hon’ble Supreme Court in the case of Mumbai International

Airport   Pvt.   Ltd.   Vs . Regency Convention Centre and Hotels   Pvt.   Ltd. and   Ors . (Civil Appeal

No.4900 of 2010 decided on 6.7.2010), learned counsel submitted that the State Commission has

failed to appreciate the well settled principle of law that the court may implead a party in a  lis on

its impleadment application moved by either of the parties. He further submitted that the State

Commission also failed to consider the provision of Order 1 Rule 10 (2) of the Code of Civil

Procedure, 1908 which is a substantive law wherein either party in the proceedings has the right

to move an application forimpleadment of a necessary party and while dismissing the revision

petition the State Commission heavily relied on the principle of dominus litis while returning its

finding which is in flagrant disregard to the specific provisions of Code of Civil Procedures.

Keeping these aspects in view, learned counsel submitted that the impugned order cannot be

sustained in the eye of law and hence liable to be set aside. He summed up by saying that no

prejudice would be caused to the complainant/respondent if Prabhjot Singh is also impleaded as

an opposite party in the complaint. Per contra, learned counsel for the respondent has submitted

that the impugned order passed by the State Commission upholding the order of the District

Forum is perfectly in order and has been passed after duly considering the provisions of law

relied by learned counsel for the petitioners.

5.         We have considered rival contentions and perused the record. The District Forum vide its

detailed order has recorded the following reasons while rejecting the request of the petitioners to

implead Prabhjot Singh as an opposite party:-

“One cannot loose sight of the fact that the complainant is dominus litis. There is no dispute about the proposition of law that sound principles of the CPC are applicable to the proceedings before the Consumer Fora. However, the question is whether the complainant can be forced to implead an OP with which he has no dispute and who is not his service provider. The jurisdiction of the

Consumer Fora is primarily and mainly to decide the disputes between the ‘consumer’ and the ‘seller’ or ‘service provider’ and that too on a complaint which can be filed only by the consumer. The seller or service provider in respect of his rights against the consumer cannot approach the Consumer Fora by filing a complaint but has to seek his remedy elsewhere. In the present case, admittedly on the representation given by the OP in the statement of accounts Annexure C-3 to the effect that it had received an amount of Rs.6,87,500/- from Prabhjot Singh on 25.8.2008 and that at that time only a sum of Rs.1,62,500/- was due to it from Prabhjot Singh, it allowed the complainant to purchase the plot from Prabhjot Singh. Not only this, it also transferred the plot in favour of the complainant vide transfer certificate dated 15.7.2010 Annexure C-2 after receiving from him the then due amount of Rs.1,68,750/- vide receipt dated 15.7.2010 Annexure C-4. If Prabhjot Singh got the benefit of a wrong entry of credit to the tune of Rs.6,87,500/- from the OP, that should not be a ground to force the complainant to implead Prabhjot Singh in these proceedings because the complainant acted upon the representation of the OP. He was not privy to the circumstances leading to the credit of Rs.6,87,500/- in favour Prabhjot Singh. Remedy of the OP against Prabhjot Singh is by way of filing a suit for recovery against him or any other remedy under the law. By filing the present application the OP cannot be allowed to contrive to implead PrabhjotSingh and then to seek adjudication of its rights against Prabhjot Singh. Therefore, for the purpose of decision of this complaint, we do not find presence of PrabhjotSingh as necessary before this Forum. As such without prejudice to the rights of the parties on merits, the present application of the OP is dismissed. Nothing said in this order shall have any bearing on the decision of the complaint on merits.”

6.         Upholding the order of the District Forum rejecting the application of the petitioners, the

State Commission has observed thus:-

“8. In proceedings under the Consumer Protection Act, the complaint would lie against the service provider. In the present case, the service provider is the petitioner and not Prabhjot Singh. In fact Devinder Singh is the successor in interest of Prabhjot Singh and not the service provider. Moreover Prabhjot Singh can be joined as a party only if there is any deficiency in service on his part. According to the complainant if there is no deficiency in service on his part and the complainant is not claiming any relief against him, Prabhjot Singh cannot be joined as a party. The Act rather punishes under section 26 joining such persons as a party if the complaint is frivolous against any of the O.Ps.

 

9.  As regards the fact whether Prabhjot Singh deposited Rs. 6,87,500/- with the O.Ps or not, it can be decided even in the absence of Prabhjot Singh. At the mostPrabhjot Singh can be a witness to the said transaction and it would be open to the O.Ps to

produce him in the witness box if they so desire. In any case he cannot be considered to be a service provider for impleading him as O.P in this case.

10. Needless to mention that the complaint can be decided in the absence of Prabhjot Singh. Whether the District Forum comes to the conclusion that the PrabhjotSingh deposited such amount or not, the same no doubt would be binding on the complainant he being his successor in interest.”

7.         We agree with the view taken by the Fora below. The contentions raised by the learned

counsel for the petitioners are fully covered by para 8 of the judgement of the Apex Court

(supra) on which learned counsel has placed heavy reliance. However, in our considered view, it

does not provide any comfort to the petitioners with reference to their request. In this context, it

would be fair and just to reproduce the observations of the Apex Court made in para 8 as under:-

“8.    The general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order I Rule10(2) of Code of Civil Procedure (`Code' for short), which provides for impleadment of proper or necessary parties. The said sub-rule is extracted below:

      "Court may strike out or add parties.

(2)    The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.

The said provision makes it clear that a court may, at any stage of the proceedings (including suits for specific performance), either upon or even without any application, and on such terms as may appear to it to be just, direct that any of the following persons may be added as a party: (a) any person who ought to have been joined as plaintiff or defendant, but not added; or (b) any person whose presence before the court may be necessary in order to enable the court to effectively and completely adjudicate upon and settle the question involved in the suit. In short, the court is given the discretion to add as a party, any person who is found to be a necessary party or proper party. A `necessary party' is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the Court. If a `necessary party' is not impleaded, the suit itself is liable to be dismissed. A

`proper party' is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in disputes in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance.”

8.         We may note that the discretion given to the Court under the provision of Order 1 Rule

10 (2) of the Code of Civil Procedure, 1908 has to be exercised keeping in view the facts and

circumstances of each case. Fora below have considered the request in the light of the facts and

circumstances of the present case and have recorded reasons for rejecting the request of the

petitioners. Bare perusal of the orders of the District Forum and the State Commission vide

which they have returned their concurrent finding rejecting the request of the petitioners, leaves

us in no doubt that the view taken by them is in line with the observations of the Apex Court.

We, therefore, do not find any illegality, infirmity or jurisdictional error which would call for our

interference with the impugned order while exercising our revisional jurisdiction under section

21 (b) of the consumer Protection Act, 1986. The revision petition, therefore, is dismissed and

the impugned order of the State Commission is upheld. There shall be no separate order as to

costs at this stage of the litigation.

……………Sd/-……..………..

     (AJIT BHARIHOKE, J.)

      PRESIDING MEMBER

         ……………Sd/-….……………

(SURESH CHANDRA)

MEMBERSS/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

REVISION PETITION NO.2573 OF 2012(From the order dated 25.05.2012 in F.A. No.500/2011 of the W.B. State Consumer Disputes Redressal Commission, Kolkata)

 1. Puspak Infrastructure Pvt. Ltd. Through its Director Mr. Manish Sharma 101, Park Street, 5th Floor, Kolkata – 162.  Sri Monish Sharma s/o Krishna Gopal Sharma r/o 85, Prime Anwar Shah Road Kolkata – 33 Director of Pushpak Infrastructure Pvt. Ltd.

                                .….. PETITIONER(S)  Versus

Santanu Mukherjee s/o Kalyan Mukherjee r/o 83/27A, Dum Dum Road Mallik Colony, Kolkata – 74

....... RESPONDENT 

BEFORE:

HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBERHON’BLE MR.SURESH CHANDRA, MEMBER

For the Petitioner     :  Mr.Rahul Jain, Advocate

For the Respondent            :  Mr.Sanjoy Kumar Ghosh, Advocate

 

PRONOUNCED   ON :             27 th         September, 2013

JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

ORDER

            Petitioners being aggrieved of concurrent finding of the foras below against them have

preferred this revision.

2.         Briefly put, the facts relevant for the disposal of this revision petition are that petitioner

no. 1 is a Company incorporated under the provisions of Companies Act, 1956, engaged in the

business of real estate development.  Petitioner no. 2 is the director of petitioner no.1

Company.  Respondent  filed a complaint under section 12 of the Consumer Protection Act, 1986

against the petitioners alleging that he entered into an agreement to purchase flat no. A-408,

Type A at the 4th Floor with super built up area of 980 sq. ft. alongwith covered parking in the

upcoming project of the opposite parties situated

at Ichapore Nilgang Gram Panchayat P.S.Barasat, District North 24 Parganas for a total

consideration of Rs.13,75,000/-.  Pursuant to the agreement, respondent paid Rs.2,75,000/- to the

petitioner as booking amount.  As per the terms and conditions of the agreement, the balance

payment was to be made in construction linked instalments. According to the complainant, the

opposite parties failed to keep him informed about the progress of construction and suddenly

vide letter dated 04.03.2010 called upon the complainant to pay a sum of Rs.13,06,250/- against

the balance price of the flat.  The demand was much more than the agreed price of the

flat.  Therefore, the complainant approached the opposite parties and protested against the

demand.  On this, the opposite party told the complainant that there was some calculation error

and they would rectify the payment.  Thereafter, the opposite parties demanded a sum of

Rs.25000/- from the complainant against the charges for electric connection, which was also

paid.  It is also alleged that the opposite parties no. 1 & 2 instead of informing the complainant

about the progress of work and justifying their demand, cancelled the allotment of the flat and

also refused to refund the advance money of Rs.3,00,000/- paid by the complainant. This led to

the filing of the complaint.

3.         The opposite Parties in their written statement admitted that petitioner had booked flat in

their project and paid booking amount of Rs.2,75,000/-.  It was also admitted that subsequently a

sum of Rs.25000/- was also paid against the demand towards the electricity connection.  Other

allegations of the complainant were denied.  According to the opposite parties, the complainant

failed to pay the construction linked instalments despite being intimated and because of his

failure to pay the balance amount, his allotment was ultimately cancelled.  According to the

opposite parties, there was no deficiency in service on their part because the complainant /

respondent had failed to comply with the terms and conditions of the agreement.

4.         District Forum Barasat on consideration of the pleadings of the parties and the evidence

allowed the complaint and directed the opposite parties to pay to the petitioner a sum of

Rs.2,70,000/- within one month of the date of the order and further directed that in the event of

failure to pay the amount within one month, the amount shall carry 9% interest from the date of

the order till the realisation of the amount.

5.         Feeling aggrieved by the order of the District Forum, the opposite parties preferred an

appeal before the State Commission West Bengal and learned State Commission after hearing

the parties, dismissed the appeal.

6.         Shri Rahul Jain, Advocate, learned counsel for the petitioners has contended that the

impugned orders of the fora below are unsustainable for the reason that the orders have been

passed ignoring the agreement between the parties, in particular clause 24 of the agreement.  

7.         We are not convinced with the above submissions made on behalf of the petitioners.  It is

undisputed that the petitioners have received a sum of Rs.3,00,000/- against the part payment of

flat booked by the complainant and that the petitioners have cancelled the allotment of flat in

favour of the complainant on the premise that the respondent has failed to make the balance

payment against the price of the flat in terms of agreement.  Clause 24 of the agreement between

the parties deals with the situation where the allotment in favour of the purchaser is cancelled by

the opposite party /  developer.  In order to appreciate the contention of the learned counsel for

the petitioners, it would be useful to have a look on clause 24 of the agreement which is

reproduced thus:

“In the even the Flat Purchaser (1) fails to make payment and any other amount payable to the developer hereunder, (2) or fails to perform the obligations on the part of the Flat Purchaser to be performed in terms of this Agreement shall at the option of the Developer stand cancelled and / or rescinded, upon which the Developer shall refund to the Flat Purchaser all payment received till that date, without any interest, after deducting 10% of payment received and due  if  any  by  termination  date  or  Booking Amount ( whichever is higher)…..”

8.         On careful reading of the above  noted clause, we find that the aforesaid clause is drafted

in a manner having potential to mislead the prospective flat purchaser.  On the one hand, clause

24 states that in the event of cancellation or rescinding of the agreement by the developer, the

developer shall refund to the flat purchaser all payments received till date without any interest

after deducting 10% which gives an impression that in such an event, the purchaser would get

the refund of 90% of the payments made till the date of cancellation of the contract.  The

aforesaid words, however, are followed by the words “payment received and due if any by the

termination date or booking amount ( whichever is higher)”, which would mean that in all

circumstances booking amount of Rs.2,75,000/- shall stand forfeited because the amount of

Rs.2,75,000/- is higher than the 10% of agreed cost of the flat i.e. Rs.1,37,500/-.  The opposite

parties developer instead of making a clear stipulation that booking amount of Rs.2,75,000/-

deposited by the petitioner shall be forfeited in case of cancellation of contract has used the

above deceptive language which cannot be comprehended by the layman who  is not conversant

with the niceties and technicalities of rules of interpretation and a prospective purchaser is likely

to be deceived by such a language and can reasonably get an impression that in the event of

cancellation of allotment by the opposite party, he would receive back the amount paid by him

after deduction of 10%.  Thus in our view, clause 24 of the agreement being deceptive is unfair

and the fora below have rightly directed the petitioners to refund 90% of the deposit i.e.

Rs.2,70,000/- to the respondent / complainant.

9.         In view of the discussion above, we do not find any jurisdictional error, illegality or

material irregularity in the impugned orders which may call for interference by this Commission

in exercise of the revisional jurisdiction.  Revision petition is, therefore, dismissed.  Parties to

bear their own costs.   

…………………..………..Sd/-

     (AJIT BHARIHOKE, J.)

      PRESIDING MEMBER

                                                           

  ……………….……………Sd/-

(SURESH CHANDRA)

                                                                                               MEMBER

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

  REVISION PETITION No. 1953 of 2011

(From the order dated 28.01.2011 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai in Appeal no. 1430 of 2009)

Kishore Shriram Sathe Resident of 7 Anand Apartments Shridhar Nagar, Chinchwad Pune – 411003                                    Petitioner

Versus

Mr Vivek Gajanan Joshi Resident of 6 Hindu Middle Class Society Opp. Apple Road, Deccan Gymkhana Pune – 411004

                      Respondent

 BEFORE:

          HON’BLE MR JUSTICE V B GUPTA             PRESIDING MEMBER

          HON’BLE MRS REKHA GUPTA                                                 MEMBER

 

For the Petitioner                         Mr Ajay Vikram Singh, Advocate 

 Pronounced   on     1 st   October,     2013

ORDER 

REKHA GUPTA 

                Revision petition no. 1953 of 2011 has been filed against the judgment and order dated

28.01.2011 passed by the Maharashtra State Consumer DisputesRedressal Commission, Mumbai

(“the State Commission’) whereby allowed the first appeal no. A/09/1430.

        The facts of the case as per the petitioner/complainant are that on or about 15.03.1988 the

respondent/ opposite party offered to sell the residential flat in a building named as Bhagirathi

Apartments situated at S.No. 272, plot no. 13, Chinchwad Taluka, Haveli, District Pune.

        The petitioner was desirous to purchase a flat for residential purpose. The petitioner on

knowing about the construction of a building named ‘Bhagirathi Apartments’ approached the

respondent on or about 15.03.1988 with a view to purchase a residential flat in the above said

building.

        On knowing the intention of the petitioner to purchase the residential flat, the respondent

offered to sell flat no. 7 situated on 2nd floor of building Bhagirathi

Apartments, Shridharnagar, Chinchwad, Pune 411 033.

        The petitioner and the respondent made and executed an agreement dated 07.04.1998,

registered in the office of Joint Sub-Registrar, Haveli no. 2, Pune at S No. 5294. By the said

agreement the respondent agreed to sell and the petitioner agreed to purchase the said flat for a

total consideration of Rs.1,68,500/-. The respondent by the said agreement assured to give

possession of the said flat on or before 31.10.1988. The petitioner has paid to the respondent

Rs.1,40,000/- towards part payment as demanded from time to time.

        Even after the stipulated date of possession respondent failed to construct the building

wherein residential flat was promised to be allotted to the petitioner.

        Therefore, the petitioner on various occasions persistently made demands orally and in

writing either to give the possession of the flat or refund the amount received from the petitioner.

The respondent on every such occasion gave false assurance to refund the amount of

consideration of Rs.1,40,000/- along with the interest as agreed by the said agreement.

        The respondent sent letters dated 24.01.1992, 10.03.1992 assuring the petitioner that certain

steps shall be taken whereby the petitioner need not suffer and worry. However, again the

respondent did not act as per his assurances.

        The petitioner therefore recently sent letter dated 01.02.2005 to the respondent demanding

refund of said Rs.1,40,000/- along with interest and compensation. The respondent received said

letter on 04.02.2005 and showed his willingness before Mr Mehendall, the member of All India

ConsumerPanchayat, Pune, to refund the entire amount with interest @ 15% per annum and

compensation within 15 days. However, this time also the promise of respondent proved to be

false one.

        Thus the respondent has wilfully failed and neglected to refund the amount of part

consideration of Rs.1,40,000/- received from the petitioner or to give possession of said flat till

date.

        The cause of action to file this complaint first arose on 31.01.1988 when the respondent

failed to give possession of the said flat and thereafter on various occasions from time to time in

spite of his promises. The respondent on or about 04.02.2005 again promised to refund the said

due amount to the petitioner but did not do so. The cause of action is of continuing nature and

therefore this complaint is within limitation period. Relaying on the various assurances of

possession of said flat or refund of said amount given by the respondent the petitioner did not file

the complaint till date.

        It is, therefore, kindly prayed that the respondent be ordered to:

(a)        To refund to the petitioner Rs.1,40,000/- along with interest @ 18% from the date of

payment till its realisation;

(b)        To pay Rs.2,00,000/- to the petitioner towards compensation for mental agony,

inconvenience to the petitioner and his family members, physical discomfort, loss of

benefit of rebate under Income Tax Act, interest paid litigation expenses, stamp duty,

registration fees etc.

(c)         Any other order in the interest of justice be kindly passed.

In their written version filed by the respondent/ opposite party has stated that the

respondent has completed construction of building and it was ready for giving possession.

However, the petitioner did not pay the balance amount. Therefore, it was not possible to give

possession to the petitioner. In spite of various intimations the petitioner avoided making

payment and delayed to take possession and in the meantime dispute arose between respondent

and land owner. Therefore, the respondent failed to give possession of said flat to the petitioner.

M/s Sayali Builders was a partnership firm. The respondent was a partner of said firm

and other partner was Mr Eknath Daguji Nikam. A land situated at S No. 272, Plot no. 13,

admeasuring 433 sq, mtr. Out of total 586 sq mtrs., was owned by Mr Eknath Daguji Nikam and

others. Mr Eknath Daguji Nikam and others transferred the development rights in the said land to

M/s Sayali Builders vide Development Agreement dated 25.02.1987 and the land owner of said

land MrEknath Daguji Nikam was himself a partner of the said partnership firm. The land

owners of said land gave power of attorney to the opposite party and EknathNikam for

development of said land and to act as per the Development Agreement. In pursuance to the said

power of attorney M/s Sayali Builders developed the said property and constructed 7 residential

flats and 3 commercial units. Meantime, petitioner was in need of a flat therefore he contacted

the respondent and agreed to purchase flat no. 7 for Rs.1,68,500/-. Accordingly,

M/s Sayali Builders executed and registered an agreement dated 07.04.1988 and agreed to give

possession upto 31.01.1988. When the construction of said building was being completed

M/s Sayali Builders informed the petitioner to take the possession after making balance payment.

However, the petitioner avoided to pay the amount and to take possession of said flat. Meantime,

dispute arose between M/sSayali Builders and said land’s original owner Nikam family

therefore, the land owners created a dispute by cancelling the development agreement and power

of attorney on 25.09.1989 and said land owners illegally took possession of the said building and

flat no. 7 which had  been allotted to the petitioner. The respondent informed about it to the

petitioner by meeting him personally and by sending letter and informed that respondent is trying

to give possession of the said flat to the petitioner. Meantime, the respondent suggested to the

petitioner to take possession of the said flat from Civil Court. However, the petitioner did not file

any suit in the civil court till date.

The petitioner M/s Sayali Builders on 07.04.1988 made and executed an agreement.

However, the petitioner was required to file a complaint in consumer forum within limitation

period. Petitioner did not file a complaint within the limitation period. Hence, it is time barred.

Also petitioner executed agreement with M/s Sayali Builders, however, it is not made a party to

the complaint. Therefore, there is bar to the complaint. Therefore, the complaint deserves to be

dismissed.

The petitioner had filed the present complaint which came to be disposed of by the

District Consumer Redressal Forum, Pune (“the District Forum”) on 23.10.2008. An order came

to be passed directing the opponent to pay an amount of Rs.1,40,000/- together with interest @

12% per annum. The rest of the claims made by the petitioner were rejected. The aggrieved

opponent had preferred the first appeal before the State Commission. It came to be allowed by

the order dated 21/04/2009 passed by the State Commission. The main order passed in the

complaint was set aside. The record and proceeding was remitted to have the District Forum with

the directions to hear the petitioner/ complainant afresh after giving opportunity to both the

parties and to settle the dispute in accordance with law. It is under the aforesaid circumstances

the District Forum dealt with the complaint afresh.

        The District Forum vide order dated 03.11.2009 observed that:

 “Before the Hon’ble State Commission, it appears that plea of limitation was again raised by the aggrieved opponent. In addition to that another plea was raised that the complaint is not maintainable against the opponent. It is pointed out that the name of the opponent is given as a partner of SayliBuilder. The later Firm is not impleaded as opponent. Consequently therefore the failure to implead the Firm is fatal and therefore on account of non joinder of the parties the complaint was liable to be dismissed. On the aforesaid findings the Hon’ble State Commission was pleased to remand the complaint to this Forum for disposal in accordance with law, afresh.

 On behalf of the opponent the aforesaid plea of non-joinder of the Firm was again raised before the Forum. It is not in dispute that the plea of limitation is again reiterated by the opponent. Shri. Joshi the learned Advocate who appeared on behalf of the opponent has urged before us that there are two technical pleas in the present case. Both of them go to the very root of the matter. They deal with the maintainability of the complaint. One of them is about the limitation and other being non joinder of the Firm. Again the observations made by the Hon’ble State Commission in its order dt.21/4/2009 are relied upon contending interalia that the Firm is a juristic person. The complainant is a consumer in relation to the Partnership Firm. When the agreement between the Firm and the complainant had taken place, the opponent had styled itself as a partner of the Firm. The Firm was not sued but the opponent in his individual name is sued. That being the position there was no legal impediment for the opponent to take appropriate plea under Order XXX of the C.P.C. The fact therefore remains that Order XXX being enabling provision it does not prevent partners of a Firm from suing in his individual name and that the Firm is not a legal entity. We therefore find that the aforesaid findings recorded by the Hon’ble Apex Court way back in the year 1961 are squarely applicable to the facts of the present case. It is not necessary to make further observations in this regard”.

        The District Forum then went on to consider and deal with the issue of limitation. The

District Forum held that:

“In the instant case what has happened is the agreement was duly registered on 7/4/1988. The payment from time to time was made by the complainant till 2/7/1990. The complainant was to be handed over possession of the said flat by the end of 31/10/1988. It may be worthwhile to mention that in the agreement dt.7/4/1988 the date of delivery of possession is not specifically provided. On the other hand in clause 9 thereof it was provided that the possession would be delivered after execution of the conveyance to the society. Then there are number of letters exchanged between the parties. In one letter dt.2/4/1988 the opponent has agreed to handover possession by the end of 31/10/1988. In the subsequent letters of 1992 and on 10/3/1992 the complainant was assured that no loss would be caused to him. There was litigation between one of the partner who incidentally was the owner of the land and the present opponent. The Development Agreement was probably terminated by the owner. The said owner had forcibly taken the possession of the flat. The efforts were made by the opponent to disposses the said partner – owner and to handover possession of the said flat to the complainant. In that background the complainant was assured in the letter dt.24/1/1992 that he shall not be liable to sustain any loss or damages. Meaning thereby the opponent had specifically admitted that the agreement would be complied with. It was only on 6/2/2005. The complainant was informed by other partner by name Shri. Nikam that there is no privity of contract between him and the complainant at the other vis a vis the said flat. It was only on this date i.e. on 6/2/2005 the complainant had learnt that the agreement in question was terminated orally by one Shri. Nikam, who was probably Partner of the opponent Firm. Now period of limitation for specific performance of the contract would begin to run from the date mentioned in the agreement. We have seen earlier that in the agreement dt.7/4/1988 there was no date fixed for performance of the agreement. The complainant had learnt that the said agreement was rescinded by letter dt.6/2/2005 only. The period of limitation would begin to run from that day. Obviously therefore reliance is placed on Article 55 of the Limitation Act by the learned Advocate for the complainant together with section 22 thereof is proper”.

 

        The District Forum came to the conclusions that “in the instant case from the discussion

made herein above it is apparent that for the first time the agreement of April 1988 was refused

to be complied with by one of the partner of the Firm on 6/2/2005. It was from this date onwards

that the period of limitation would begin to run. We therefore find that we have no other option

but to adopt the reasoning and conclusions already arrived by us by earlier order dt.23/10/2008.

We therefore proceed to pass the following order:

ORDER 1.     “The complaint is partly allowed. 2.     The Opposite Party is hereby directed to refund to the Complainant, an amount

of Rs.1,40,000/- together with interest thereon @ 12% p.a., as from the date of respective payments till realization thereof by the Complainant, within a period of two months from the date of this order.

 3.     Rest of the claims of the Complainant stands rejected.

 4.     No order as to costs”.

 

        Aggrieved by the order of the District Forum, the respondent filed an appeal before the

State Commission. The State Commission while allowing the appeal has observed as under:

“Opponent opposed the consumer complaint specifically raising contention that the agreement was with ‘Sayli Builders’, which is a registered partnership firm. The property belonging to one of its Partners, namely, Eknath Daguji Nikam, was given for development to said partnership firm as per agreement dated 25.02.1987. In all seven residential flats and three shops were to be constructed. Complainant was in need of a flat and therefore, contacted M/s.SayaliBuilders and agreed to purchase Flat No.7 for consideration of Rs. 1,68,500/- from said firm and entered into an agreement dated 07.04.1988. Sayali Builders asked the Complainant to take possession of the flat on payment of balance consideration. The Complainant avoided to take possession. In the meantime thereafter dispute arose between the Sayali Builders and the original land owners of the property and the original land owners cancelled the development agreement dated 25.09.1989 and also revoked power of attorney in favour of the Sayali Builders. Thereafter, those land owners also forcibly took possession of flat no.7. These developments were brought to the notice of the Complainant by the Opponent and it was also suggested to the Complainant to take possession through Civil Court. It is alleged that the consumer complaint is barred by limitation and furthermore the consumer complaint ought to have been filed against Sayli Builders and since said Sayali Builders is not joined as a party, the complaint is not tenable. After hearing both the parties the Forum initially settled the dispute by an order dated 23.10.2008. The same was challenged by the Opponent in First Appeal no.1558/2008. Allowing the said appeal, matter was remanded back and it was also observed while disposing the appeal that Sayali Builders ought to have been made a party. The matter was remanded in view of those observations. It appears that thereafter Complainant did not take any steps to addSayali Builders as a party. The matter was re-contested on the basis of original pleadings, i.e. complaint and the written version. The matter stood disposed of by an impugned order, supra. The Agreement in question dated 7th April, 1988, the copy of which is on record, is not in dispute. It can be seen that said agreement is entered with SayaliBuilders, the registered partnership firm and not with the opponent. Though Opponent was shown as the partner acting on behalf of said firm the complaint as drafted and to which the reference is made earlier, the Complainant did not allege that the agreement was with the partnership firm, but, described the Opponent as the builder and developer and stated that it is the Opponent who offered him a plot thereafter and an agreement dated 07.04.1988 was entered into. It shows that Complainant, since from the beginning did not want to bring a registered partnership firm M/s.Sayali Builders into picture as a defending party. In fact once the agreement is with the partnership firm, the service deficiency, if any, could be alleged only against the said firm and not against any individual. Had it been a fact that all the partners of M/s.Sayali Builders were joined as parties, the things could have been looked with difference but, it is not the case before us. Considering the provisions of Indian Partnership Act, inter se relationship between the partners of a firm is governed by the partnership agreement. Therefore, to file a consumer complaint in the personal name of the Opponent and that to describe him as a builder and developer who agreed to sell the flat, is per se not only contrary to the agreement dated 07.04.1988, but also against the provisions of the Consumer Protection Act, 1986 (hereinafter referred to as the ‘Act’ for brevity) and no consumer complaint for want of hiring of any service of the Opponent in his individual capacity would lie against the Opponent. 

The Forum heavily relied upon the decision of Apex Court in the matter of Purushottam Umedbhai and Company V/s. Manilal and Sons, reported in 1961 AIR(SC) 325. It has only explained the scope of Order XXX of Code of Civil Procedure, 1908 and further explained that after incorporation of said Order in the scheme of Code of Civil Procedure, an enabling provision is made which permits the partners constituting firm to sue or be sued in the name of the firm. Provisions of Order XXX of Code of Civil Procedure 1908 are not made applicable to the consumer dispute under the Act as per Regulation No.26(1) of the Consumer Protection Regulation 2005 and it is mandate of law that, in all proceedings before the Consumer Forum, endeavour shall be made by the parties and their counsels to avoid the use of provisions of Code of Civil Procedure, except the one provided for. To decide the inter se relationship as a consumer and service provider between the parties to consumer dispute one has to refer to a definition of “person” per section 2(1)(m) of the Act. It includes a firm registered or not. The phrase “deficiency” (Section 2(1)(g) of the Act) is defined as under: 

“deficiency” means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.” (underlining provided).

 Thus, it is clear that a registered partnership is recognized as a person vis-à-vis jurisdic person as a service provider and therefore, if the deficiency in service is to be alleged against the said registered firm the consumer complaint ought to have been filed against the said firm. It may be that the partners of said firm could be joined along with the firm, but, it is certainly not contemplated that a consumer complaint could be filed only against a person like an opponent against whom the action is brought in his personal capacity and certainly it is further not contemplated that only one partner of a partnership firm could face consumer complaint in the absence of the firm and other partners. Therefore, present consumer complaint suffers a vital defect and it cannot be proceeded against the Opponent. From the statement made by the Complainant himself it could be seen that Complainant was well aware (as reflected from the correspondence since the year 1992 and from the averments made in the complaint) that no construction of the building was coming up and hence, it was not possible to get possession of the flat and demanded refund of the amount, i.e. consideration paid. In paragraph 9 of the complaint, supra, the Complainant alleged that by his letter dated 01.02.2005 which was received by Opponent on 04.02.2005, the opponent showed his willingness before Mr.Mahendall, the member of All India Consumer Panchayat, Pune, to refund entire amount with interest @15% per annum and compensation within 15 days. The complaint is also filed for refund of consideration only, thus, it is a money claim and at that point of time the Complainant already treated the original agreement to sell a flat or purchase a flat rescinded. Therefore, for said money claim no consumer complaint would lie. A reference has been made to a letter dated 06.02.2005 addressed to the Complainant by one Shri S.E. Nikam (presumably land owner and one of the partners of Sayli Builders). The Forum referring to this letter in paragraph 13 of the impugned order made certain observations to the effect that “it was only on this letter date 06.02.2005 Complainant learnt that the Agreement in question was terminated – by one Shri Nikam who was probably partner of the opponent firm …………. The complainant had learnt that the said

agreement was rescinded by letter dated 06.02.2005 only. The period of limitation would began to run from that day” Such observation is a departure from the factual position and is a mis-statement of fact. The letter dated 06.02.2005 written by Mr. S.E. Nikam, supra, acknowledged the communication received from the Complainant dated 04.02.2002 and further informed the Complainant to explain to said S.E. Nikam as to under which authority he was claiming flat no.7 from Bhagirathi Apartment and further requested the Complainant to forward to him the necessary documents showing his interest or a claim in the said flat. Mr. S.E. Nikam also informed Complainant by said communication that there was no agreement between him and the Complainant at any time and there is no transaction of receiving money had taken place in between them. Thus, it is not the letter whereby any contract was rescinded by said Shri S.E. Nikam either on his behalf or on behalf of M/s.Sayali Builders. As earlier recounted, Complainant was well aware from the correspondence from the year 1992 itself that the agreement to handover possession of the flat would not be materialized because no construction was at all coming up (as per case presented by the Complainant himself). He further restricted his reliefs to claim refund of the consideration paid i.e. `1,40,000/-. Therefore, the cause of action to file the consumer complaint arose in the year 1992 itself and thus, the consumer complaint filed on 17.01.2006 is barred by limitation in view of the Provisions of Section 24-A of the Act. For the reasons stated above, we hold accordingly and pass the following order: 

O R D E R      (i)       Appeal is allowed. 

    (ii)       Impugned order dated 03.11.2009 is set aside and in the result Consumer Complaint No.19/2006 stands dismissed”.

 

        Hence, this present revision petition.

        The main grounds for the revision petition are as follows:

         The State Commission has ignored the fact that as per order XXX of CPC the partner

of a firm can be sued in his individual name.

         The State Commission has ignored the fact that the main reason of the CPC not being

made applicable in its original form to the consumer proceedings is merely to avoid the

technicalities of CPC which is very cumbersome and causes lot of delay.

         Mr Eknath Dagdu Nikam, i.e., the other partner of Sayali Builder breathed his last on

06.05.1998 and the firm Sayali Builders had only two partners and as per Section 42 © of

the Partnership Act with the demise of one partner the firm is dissolved and

only Mr. Vivek Gajanand Joshi (Respondent) was left who can sue or be sued.

         The State Commission has ignored the fact that the money was lying with the

respondents and as such the cause of action for refund of aforesaid money deposited by

the complainant is recurring and continuous.

        We have heard the learned counsel for the petitioner and have also gone through the records

of the case carefully.

        The two main points raised by the petitioner in the revision petition are that whether one of

the partners of the firm can be sued in his individual name and held responsible for the liabilities

of the partnership firm with whom the agreement was entered into and secondly, whether the

complaint had been filed within the limitation period.

        With regard to the first question it is seen from agreement placed on record that it was

between Sayali Builders, a partnership firm registered under the Indian Partnership Act of 1932

and the petitioner. It is clearly mentioned in the agreement that Agreement of Development dated

20.06.1987 executed betweenShri Eknath Daduji Nikam, Shri Shanatram Eknath Nigam

and Sou Sadhana Shantaram Nikam constitutes parternship firm

between Shri Eknath Daduji Nikamowner of the land and the builder Shri Vivek Gajanand Joshi

by the deed of partnership dated 14.06.1987. It also mentioned that builders had been granted

power and authorities under the General Power of Attorney dated 10.12.1987 for enabling the

builders to do various acts, deeds and things in the development of the said plot and in the

allotment and/ or sale of flats and garages on which is known as ownership basis. It was in this

capacity that the agreement had been entered into for Sayali Builders by Mr G G Joshi.

        The petitioner had to be aware of these facts. As given in the written arguments by the

respondent, the dispute arose between M/s Sayali Builders and the said land’s original

owner Nikam Family, therefore the land owners created a dispute by cancelling the development

agreement and power of attorney on 25.09.1989 and the said land owners illegally took

possession of the said building and flat no. 7 which was allotted to the complainant. The

respondent had informed the petitioner by meeting him personally and by sending letters  that he

is trying to give possession of the said flat to the petitioner. The respondent suggested that he

would take possession of the flat from the civil court. However, the respondent did not file any

civil suit in any civil court till date. This is also supported by the letter dated 24.01.1992, which

has been placed on record by the petitioner which is from the respondent to the petitioner

apprising of the problems of the partners as also cancellation of the agreement. The letter dated

25.06.2005 from Shri S E Nikam to the petitioner which is a response to the registered letter sent

by the petitioner on 04.01.2002, merely says that there is no proof that the flat no. 7 in Bhagirathi

Apartments was allotted to the petitioner and that he is not aware of any agreement/ deed

executed or dealing with regard to the money transaction between the petitioner and Shri S

ENikam.

In the above-mentioned circumstances, we agree with the order of the State Commission

where they have come to the conclusion that consumer complaint suffers a vital defect and it

cannot be proceeded against the opponent.

        With regard to the second question of limitation neither the facts mentioned in the

complaint nor any argument made by the counsel for the petitioner justify the inordinate delay of

in filing the complaint on 17.01.2006. As per the facts of the case the agreement for purchase of

flat was signed on 07.04.1988. Whereas the agreement did not mention any date for handing over

the possession, as per the petitioner he was to have been delivered the possession of the flat by

end of 31.10.1988. He was made aware of the cancellation of the development agreement and

power of attorney as also the fact that land owners have illegally took possession of the said

building and flat no. 7 which was allotted to the complainant on 25.09.1989. In was in these

circumstances, that in 2002 that he even written to Shri S C Nikam, the land owner. Even

presuming that he was not aware of this fact immediately on cancellation, he has himself placed

on record a letter from the respondent dated 24.01.1992 apprising of the circumstances.

Therefore, the cause of action to file a consumer complaint arose in 1992 if not before, Hence,

this consumer complaint filed only on  17.01.2006 is barred by limitation, in view of the

provisions of section 24 (A) of the Act.

        In discussing the import of the aforesaid section, the Apex Court has observed as under in the case of State Bank of India v B. S. Agriculture Industries(I) [(2009) 5 SCC 121]:

“7.    The bank resisted the complaint on diverse grounds, inter alia, (i) that the complainant was not a consumer within the meaning of Consumer protection Act, 1986 (for short, ‘Act, 1986’); (ii) that the complaint was early time barred and beyond the period of limitation; (iii) that the bills and GR’s were returned to B.M. Konar, the Sales Manager of the complainant firm; (iv) that the drawee (M/s Unique Agro Service) had accepted the liability of payment of the bills to the complainant vide letter dated May 11, 1994 and also deposited a cheque to the complainant in that regard.8.      The District Forum framed two points for determination: (one) whether there is any deficiency on the part of the opposite party and (two) whether B.M. Konar was authorized agent in collecting the bills and GR’s from the Bank? Pertinently, despite the specific plea having been raised by the Bank that the complaint was time barred, point for determination in this regard was neither framed nor considered.9.     The District Forum held that there was deficiency in service by the Bank and that the Bank was liable to compensate the complainant and consequently, directed the Bank to pay to the complainant a sum of Rs. 2,47,154/- with interest @ 15% per annum from April 21, 1994 and Rs. 5,000/- as compensation.10.    As stated earlier, the State Commission affirmed the order of the District Forum and the National Commission also did not interfere with the concurrent orders of the consumer fora.11.    Section 24A of the Act, 1986 prescribes limitation period for admission of a complaint by the consumer fora thus:

“24A. Limitation period – (1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.(2) Notwithstanding anything contained in subsection (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission,

as the case may be, that he had sufficient cause for not filing the complaint within such period:Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.”

It would be seen from the aforesaid provision that it is peremptory in nature and requires consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The consumer forum, however, for reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, ‘shall not admit a complaint’ occurring in section 24A is a sort of legislative command to the consumer forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder.

12.    As a matter of law, the consumer forum must deal with the complaint on merits only if the

complaint has been filed within two years from the date of accrual of cause of action and if

beyond the said period, sufficient cause has been shown and delay condoned for the reasons

recorded in writing. In other words, it is the duty of the consumer forum to take notice of section

24A and give effect to it. If the complaint is barred by time and yet the consumer forum decides

the complaint on merits, the forum would be committing an illegality and, therefore, the

aggrieved party would be entitled to have such order set aside.

        Learned counsel for the petitioner has also cited two judgments, pertaining to the National

Commission as well as the Hon’ble Supreme Court of India. In the first case - Mopar Builders

and Developers Pvt. Ltd., vs Unity Co-op Housing Society Ltd. (RP no. 2743 of 2010) is not

applicable to the case on hand and second case pertaining to Lata Construction

and Ors vs Dr Rameshchandra Ramniklal Shah also does not apply to the case on hand.

In view of the above, we find that there is no jurisdictional error, illegality or infirmity in

the order passed by the State Commission warranting our interference. The revision petition is

accordingly dismissed with cost of Rs.5,000/- (Rupees five thousand only).

        Petitioner is directed to deposit the cost of Rs.5,000/- by way of demand draft in the name

of ‘Consumer Legal Aid Account’ of this Commission, within four weeks from today. In case

the petitioner fails to deposit the said amount within the prescribed period, then it shall be liable

to pay interest @ 9% per annum till realisation.

List on 22nd November 2013, for compliance.

Sd/-..………………………………[ V B Gupta, J.] 

   Sd/-………………………………..[Rekha Gupta]

 Satish

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI       REVISION PETITION NO.     2023 OF 2013 (From the order dated 19.02.2013 in Appeal No. 410/2012 of the State Consumer Disputes Redressal Commission, UT, Chandigarh)

With IA/3339/2013 (For Stay) 1.  Ansal Properties & Infrastructure Ltd. 115 Ansal Bhawan, 16 Kasturba Gandhi Marg,     New Delhi – 110001                     2.  Ansal Properties & Infrastructure Ltd. Regional Office,  SCO No. 183-184 Madhya Marg, Sector 9-C Chandigarh

                                            …Petitioners/Opp. Parties (OP)       

Versus

Indu Dhir W/o Shri R.K. Dhir R/o H. No. 800, Sector 4, Panchkula, Haryana

                                    …Respondent/Complainant BEFORE

     HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

    For the Petitioners          :        Mr. Dalip Mehra, Advocate

                                      With Ms. Sugandha Chugh, Advocate

For the Respondent       :  Ms. Neha Kedia, Advocate

 

PRONOUNCED ON       9 th   October,     2013  

O R D E R 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER  

            This revision petition has been filed by the petitioners against the order dated 19.02.2013

passed by the State Consumer Disputes Redressal Commission, UT, Chandigarh (in short, ‘the

State Commission’) in Appeal No. 410/2012 – Ansal Properties & Infrastructure Ltd Vs. Indu

Dhir by which, while dismissing appeal, order of District Forum allowing complaint was upheld.

 

2.      Brief facts of the case are that Complainant/Respondent booked a shop for her own use

with OP/petitioners on 6.9.2008 and deposited a sum of Rs.10,71,250/- from 12.9.2008 to

15.1.2009.  OP issued allotment letter dated 6.9.2008 and it was also assured that construction

would be started immediately and possession would be handed over before December, 2010. As

OP did not start the construction till December, 2010, notice dated 5.3.2012 was issued to the

OP, but no reply was received.  Ultimately, complainant requested OP to refund deposited

amount with interest.  As amount was not refunded, alleging deficiency on the part of OP,

complainant filed complaint before District Forum.  OP resisted complaint and submitted that

allotment of shop was for commercial purposes; hence, complainant was not a consumer and

complaint was not maintainable. It was further submitted that complainant failed to make

payment as per given schedule and was defaulter in making payments, complainant was

repeatedly requested to make balance payment, but payment was not made.  It was further

alleged that as per Clause 9 of the agreement, complainant was liable to pay interest @ 21% p.a.

on delayed payments and as per Clause 3 & 4 of the allotment letter, OP had  right to cancel the

allotment in case payment is not made in time.  Denying deficiency on the part of OP, prayed for

dismissal of complaint.  Learned District Forum after hearing both the parties allowed complaint

and directed OP to refund deposited amount of Rs. 10,71,250/- along with 9% p.a. interest and

further awarded Rs.7,000/- as cost of litigation.  Appeal filed by the petitioners was dismissed by

learned State Commission vide impugned order against which, this revision petition has been

filed., 

3.      Heard learned Counsel for the parties finally at admission stage and perused record. 

4.      Learned Counsel for the petitioners submitted that respondent failed to make payment as

per terms and conditions of allotment letter though shop was ready for delivery of possession;

even then, learned District Forum committed error in allowing refund of full amount along with

interest and learned State Commission further committed error in dismissing appeal; hence,

revision petition be allowed and impugned order be set aside and complaint be dismissed.   On

the other hand, learned Counsel for the respondent submitted that order passed by learned State

Commission is in accordance with law, which does not call for any interference; hence, revision

petition be dismissed. 

5.      It is admitted case of the parties that OP allotted shop to the complainant for a sum of

Rs.30,00,000/- and payment was to be made as per construction linked instalments plan.  It is

also not disputed that complainant deposited Rs.10,71,250/- with the OP. As per Clause 10 of the

allotment letter, construction of shop was likely to be completed within 2 to 2½ years from the

date of commencement of work meaning thereby construction was to be completed in 2½ years

from the date of commencement of work. As per instalment plan, Rs.4,50,000/- were payable on

start of construction.  From the record it is not clear when construction started, but as

Rs.1,90,625/- were paid by the complainant on 15.1.2009, it may be presumed that construction

must have started after 15.1.2009 and it was to be completed by 15.7.2011. This is also not

disputed that complainant has not made any payment on start of construction and on casting of

roof of basement, ground floor, etc. inspite of reminders dated 17.12.2009, 9.3.2011, 16.5.2011,

12.7.2011, 7.9.2011, 7.10.2011, 14.11.2011 and 13.2.2012. 

6.      As per clause 3 of the allotment letter, if payments are not received by the OP within the

stipulated period, OP at is discretion had a right to cancel the allotment and in that event, earnest

money i.e. 20% of the allotment price of the shop was liable to be forfeited.  OP by letter dated

25.7.2012, cancelled booking made in favour of the complainant and forfeited 20% of the basic

price. 

7.      Learned Counsel for the petitioner submitted that as respondent failed to make payment as

per terms and conditions of allotment letter, petitioner had every right to cancel the allotment and

forfeit 20% of the basic price.  Perusal of record clearly reveals that respondent failed to deposit

amount as per terms and conditions of allotment and petitioner by letter dated 25.7.2012

cancelled the booking and forfeited 20% of the basic price which is as per terms and conditions

of the allotment letter and respondent is not entitled to get refund of whole amount

deposited  with the petitioner. 

8.      Learned Counsel for the respondent submitted that as petitioner has not carried out

construction work for a long period, respondent was entitled to get refund of whole amount

deposited by him along with interest and learned District Forum rightly allowed complaint.  This

argument is devoid of force because as per occupation certificate dated 7.3.2012 issued by

Greater Mohali Development Authority, occupation certificate has been issued for the allotted

shop etc. in favour of the petitioner.  Thus, it becomes clear that construction of the allotted shop

has been completed before 7.3.2012, though; it should have been completed by 15.7.2011

meaning thereby, some delay has been caused in completion of construction.  Merely because

there is some delay in completion of certificate, petitioner is not entitled to get refund of the

amount, rather petitioner could have been entitled for grant of compensation and interest on the

deposited amount for delayed period had he deposited all the instalments as per instalment

plan.  As respondent has not deposited amount as per instalment plan, petitioner was not under

obligation to construct the shop within the stipulated period and in such circumstances, on

account of delay of some months in completing construction, respondent is not entitled to any

interest on the deposited amount.

9.      Perusal of record reveals that complaint has been filed on 26.3.2012 whereas occupation

certificate has been issued on 7.3.2012 meaning thereby, complaint has been filed for the

purposes of avoiding possession of the shop which cannot be permitted.  Respondent was under

an obligation to make payment of the instalments and get possession of the shop, but he has

failed to make payment and his allotment has been cancelled as per terms of allotment letter and

he is entitled to get refund of money only after deduction of 20% of the basic price. Learned

District Forum has committed error in allowing refund of full amount and learned State

Commission has further committed error in dismissing appeal. 

10.    Learned District Forum while allowing complaint observed in paragraph 7 of the order as

under: “Further, it is also evident that the complainant has not made complete payment to the opposite party and is a defaulter. The complainant is now seeking refund. We do not think that the opposite party should have any objection in refunding the amount paid by her for the booked property. If the property is ready for possession, the opposite party will be able to find many buyers for the same.  Non-payment or inability to pay should not be held as a   ground to refuse refund.  The money paid belongs to the complainant and she does have a right to ask for refund”.

 

11.    Reasoning given for refund of amount is not convincing because it cannot be expected

from the OP to find buyer and refund money to the complainant who was unable to make

payment of rest of the instalments. 

12.    Consequently, revision petition filed by the petitioner is allowed and impugned order dated

19.2.2013 passed by learned State Commission in Appeal No. 410/2012 – Ansal Properties &

Infrastructure Ltd Vs. Indu Dhir and order dated 10.10.2012 passed by District Forum in

Complaint No. 170 of 2012 – Indu Dhir Vs. The Managing Director, Ansal Properties &

Infrastructure Ltd. is modified and petitioner is directed to refund Rs.4,71,250/- along with 12%

p.a. interest from 25.7.2012, the date of cancellation of booking till payment. Parties to bear their

own costs.                                         ………………Sd/-……………

( K.S. CHAUDHARI, J)

  PRESIDING MEMBER k

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI                                                                               FIRST APPEAL NO. 309  OF 2008(Against the order dated 26.05.2008 in Complainant No.47 of 1996  of the State Commission, Maharashtra)                                                                                              M/s. Nikhil Builders Through their Partners: 1. Mr. Dilip Vishnu Salvi’2. Mr. Chetan Vishnu Salvi3. Mr. N.G. PastheAll have their address at Salvi Wadi, Deshbandhu Chaphekar Marg, Mulund (East), Mumbai 400081

...... Appellant 

Versus1. Shri Swami Kumar Banvalikar R/o Flat no.1, Indraprastha Building, Chaphekar Bandhu Marg,Mulund (E), Mumbai 400081 2. Mrs. Pushpa Kumar Bathe R/o Flat no.2, Indraprastha Building, Chaphekar Bandhu Marg,Mulund (E), Mumbai 400081                           3. Mr. Chandrashekhar M.Pandit R/o Flat no.4, Indraprastha Building, Chaphekar Bandhu Marg,Mulund (E), Mumbai 400081 4. Mrs. Asmita A. Kale, R/o 83/A, Desai Building, 1st floor, Gharpure Path, Girgaum, Mumbai 4000045. Shri Kamlakar Y. Patankar R/o Flat no.7, Indraprastha Building, Chaphekar Bandhu Marg,Mulund (E), Mumbai 400081 6. Shri Jagannath W. Mokal, R/o Flat no.8,Indraprastha Building, Chaphekar Bandhu Marg,Mulund (E), Mumbai 400081 7. Shri Vijay N. Pednekar R/o Flat no.9, Indraprastha Building, Chaphekar Bandhu Marg,Mulund (E), Mumbai 4000818. Shri Gajanan S. Thakur R/o. Flat no.10, Indraprasta Building Chaphekar Bandhu Marg,Mulund (E), Mumbai 400081 9. Shri Nitin B. Chavan R/o Flat no.B-6, Indraprastha Building, Chaphekar Bandhu Marg,Mulund (E), Mumbai 400081 10. Mrs. Nilam N. Karne R/o Flat no.B-9, Indraprastha Building, Chaphekar Bandhu Marg,Mulund (E), Mumbai 400081 11.Mrs. Mangala P. Banavalkar R/o Shop no.2, Indraprastha Building, Chaphekar Bandhu Marg,Mulund (E), Mumbai 400081 12. Nav Indraprastha Co-op. Hsg. Soc. Ltd., Chaphekar Bandhu Marg, Mulund (E), Mumbai 400081                                                                                                                           ….Respondents  BEFORE:HON’BLE MRS. VINEETA RAI, PRESIDING MEMBERHON’BLE MR. VINAY KUMAR, MEMBER                                                                           For the Appellant            : Mr.S.K.Sharma, Advocate with                                           Mr. Uday B. Wavikar, Advocate                                           Mr. Vikas Nautiyal, Advocate For the Respondents       : Mr. Rajeev Sharma, Advocate                                            Mr. Abhishek Birthray, Advocate                                            Mr. A.P.Rege, Advocate                                            Mr. Sahil Bhalaik, Advocate  PRONOUNCED ON:  23rd Oct. 13

ORDER

PER MR. VINAY KUMAR, MEMBER

M/s. Nikhil Builders have challenged the award of the Maharashtra State Consumer

Disputes Redressal Commission in Consumer Complaint No.47 of 1996 filed by the present

respondents.  The complaint before the State Commission is filed by 11 purchasers of flats

together with their society namely, Nav Indraprastha Co-op. Housing Soc. Ltd.,

Mumbai.  Sixteen reliefs were sought by the appellant.  The State Commission has granted the

following: -“1. O.P./Builder/developer is directed to obtain Occupation Certificate

from local authority concerned. 2. From the date of respective occupation of the flats by the complainants,

the complainant are liable to pay municipal taxes in respect of their own flats and for all other flats, the builder is responsible to pay municipal taxes.

3. O.P. /Builder is directed to pay Rs.24,000/- to the complainants towards reimbursement of additional levy sewage tax, which was paid by the complainants.

 4. O.P/Builder is directed to pay the cost incurred, if any, by the

complainants for formation of society. 5. O.P/Builder is directed to pay proportionate maintenance charges of

Rs.120/- per month in respect of those flats, which were retained by the builder for his own purpose or for resale.

 6. O.P./Builder is directed to execute Deed of conveyance in favour of

complainants or in favour of complainants society i.e. complainant no.12 within a period of two months from the date of this order.

 7. O.P./Builder is directed to remove the unauthorized construction and to

hand over that space to the society already formed by the complainants. 8. O.P./Builder is directed to transfer individual meters in the name of

respective complainants at his own expenses. 9. O.P./Builder is directed to pay Rs.2000/- each to all the complainants

including complainant no.12 newly added Co-operative Housing Society and to bear its own cost.

 10. Builder is also directed to pay Rs.10,000/- each to all the complainants

except complainant no.12 for the mental harassment suffered by complainants for so many years.”

 

2.      During the course of consideration of the appeal filed by the OP/Nikhil Builders against the

above order, this Commission gave a notice of hearing to the respondents/Complainants on relief

no.7 i.e. the direction to the builder to execute the conveyance deed in two months.  As for the

other reliefs granted by the State Commission, the appellant was directed on 6.3.2009 to

complete the compliance within two weeks. Therefore, consideration of the appeal has got

limited only to the question of non execution of the conveyance deed.

3.      The two sides were also directed to file their written synopses/arguments.  The same has

been filed on behalf of the respondents/Complainants.  Written synopsis/arguments had already

been filed on behalf of the appellant/OP.  The case of the appellant has been argued by Shri

S.K.Sharma, Advocate assisted by Shri Uday B. Wavikar, Advocate. On behalf of

respondents/Complainants Mr. Sahil Bhalaik and Mr. Rajeev Sharma Advocates have been

heard.   

4.      The case of the complainants before the State Commission was that they had entered into

individual agreements in 1984 with the OP/builder for purchase of flats. As per approved plan,

the building was to have five floors, with four shops on the ground floor and in all 12 residential

flats on the remaining four floors. The plan, as shown to them had the approval of the BMC. The

Builder/OP had assured delivery within one year from the date of the agreement. But, they were

actually put in possession of their flats in 1989.  Allegedly, after 1991 the builder started

extending portions of the building, contrary to the approved plan. The builder ultimately

constructed six floors as ‘B’ wing of the building, in addition to the existing block, ‘A’ wing.

Due to this, despite getting possession of their flats six years ago (at the time of the complaint)

the complainants were not able to get conveyance deed from the builder.

5.      The reply of the appellant/OP before the State Commission was that the plan for ‘A’ Wing

of the building was approved by the BMC in 1986. It was for 500 square meters out of total land

of 943.2 square meters. The remaining 443.2 square meters had been declared surplus under the

Urban Land Ceiling Act.  After the Competent Authority ULC exempted an area of 216.50

square meters, out of the total surplus of 443.20 square meters, the builder found it necessary to

utilize the additional FSI by amending the earlier plan.  Hence, the revise proposal was made for

constructing the additional ‘B’ wing of the building.  As per OP/builders, the revised plan was

submitted in 1988 without proposing any alteration or modifications in the flat in ‘A’

wing.  Allegedly, the modification of the plan was approved by BMC in 1989, permitting

construction of the ‘B’ wing.

6.      On the question of execution of conveyance deed, the submission of the OP/builders before

the State Commission was that since the Cooperative Housing Society of the flat owners had

already been formed, it was willing to execute the same in favour of the Society.  However, the

State Commission has observed that it was also pleaded on behalf of the OP that the amended

plan for the sixth floor of the ‘A’ wing had already been submitted to BMC for approval. In this

context, the Commission has observed that—“Coming now to the important prayer about conveyance, we are finding

that till today builder has not executed Deed of conveyance in favour of society.  It is the bounden duty of the builder/developer even under Maharashtra Ownership Flats Act that he should execute conveyance deed in favour of society once society of flat purchasers is formed.  It is the tendency of unscrupulous builders not to execute Deed of Conveyance in favour of society and not to form and get registered Co-operative society with the ill  motive of exploiting TDR rights and additional FSI, if any available on the plot.  For this purpose, most of the builders and developers are very shy of executing Deed of conveyance in favour of society and with this aim only, often they avoid to get registered Co-operative society of flat

purchasers.  As per Agreement executed between builder and flat purchasers in this case and also under Maharashtra Ownership Flats Act, builder and developer has to execute Deed of Conveyance in favour of society at the earliest.  This has not been done till today and therefore, there is obvious deficiency in service on the part of the builder, statutory as well as contractual in not executing Deed of conveyance in favour of the society.  So direction will have to be given in this regard to the opponent/builder to execute Deed of conveyance in favour of complainants or in favour of complainants society i.e. complainant no.12.”

 

7.      As per the records, the original plan, in so far as Wing ‘A’ of flats concerning the

Complainants is concerned, was approved way back in 1984.  The flats were constructed and

admittedly, the Complainants were put in possession of their respective flats in 1989.  As per the

written statement before the State Commission filed in March 1997, on behalf of the OP,

construction of ‘A’ wing was completed in 1988.  In the same year, revised plan was submitted.

Admittedly, it was approved by the BMC in 1989, permitting the OP to put up the ‘B’

wing.  Here, the WS clearly states that the revised plan did not propose any change, alteration or

modification in the flats agreed to be sold to the purchasers of the first building.  If this is to be

believed, the OP could not have put up 5thand the 6 floors in Block-A, subsequent to sale of flats

in the first four floors to the Complainants.  This gap is sought to be covered in a very vague

statement, at the end of para 4 of the WS.  It reads:-“It is false to say that we have constructed two flats in ‘A’ wing during the

year 1993.  A wing was completed in the year 1988 and no construction was undertaken after 1992 in ‘A’ wing as alleged.”  

 

Significantly, in the affidavit of Shri Sudhakar Amare, Architect of the appellant, filed before the

State Commission on 11.11.2008, it is stated that:“I say that we have already obtained part occupation certificate for phase-I,

A wing for 1st to part 4th floor on 7/12/1991 from the office of the building proposal department of Mumbai Municipal Corporation.”

 

8.      From a joint reading of these two averments it becomes clear that in so far as flats of the

complainants in ‘A’ Wing are concerned, the occupation certificate for the first four floors was

admittedly obtained in 1991 itself and addition of the 5 th and the 6th floors in this Block was

made by the Opposite party between 1988 and 1992.  It is therefore, amply clear that, with or

without addition of the 5th and 6th floors to ‘A’ wing, there was nothing to prevent the OP from

executing the conveyance deed for the flats of the Complainants on 1st to the 4th floors of the

same building.  Strangely enough, the WS filed before the State Commission, years later on

12th March 1997, offers no clear explanation for failure of the OP to do the same. 

 9.     Even in arguments advanced on behalf of the appellant/OP before this Commission, there

is no attempt to explain the failure to act on the occupation certificate obtained from BMC in

1991.  The case made out is that even now the BMC has not issued completion certificate for the

modified project.  It is argued that:-“The Appellant was under statutory inability to obtain the building

completion certificates in view of the delay in taking over possession of the

remaining portion of the land acquired by the Special Land Acquisition Officer for 60 ft. D.P. road.  The procedure of taking over possession of the said land by the Special Land Acquisition Officer and BMC is not under the control of the Appellants and therefore, they cannot be blamed with the tag of deficiency in service.”

10.    In our view, this argument is nothing more than an attempt to enlarge the scope of the

present proceedings.  It goes well beyond the pleadings of the OP before the State

Commission.  It was not the case of the appellant/OP  that any dispute existed  in this regard. The

WS filed before the State Commission had clearly stated that a portion of the land for this road

had already been handed over to BMC and the BMC had already developed 44 ft. wide road

thereon.   We therefore, have no hesitation in rejecting this contention.

11.    In conclusion, it is held that the impugned order passed by the Maharashtra State Consumer

Disputes Redressal Commission in CC No.47 of 1996 is based on correct appreciation of the

evidence on record.  No case is made out for interference with the same.  The Appeal is

therefore, dismissed.  Further, considering the conduct of the appellant/OP and its consequence

for the respondents/complainants, further cost of Rs.5000/- (Rupees Five Thousand) is awarded

in favour of each and every Complainant.  This shall be in addition to the cost awarded by the

State Commission and shall be paid within a period of three months from the date of this order.                               …..…………….…….……                                                        (VINEETA RAI)PRESIDING MEMBER  

                               …..…………….…….……                                                        (VINAY KUMAR)S./-                                                                                                                  

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHIFIRST APPEAL NO. 266 OF 2008

(Against the order dated 29.02.2008 in Complaint No. 28/2005 of theU.P. State Consumer Disputes Redressal Commission) Dr. J.L. Chaudhary S/o Shri M.L. Chaudhary R/o B-697, MIG Flats East of Loni Road, Shahdara Delhi-110093

                                                           …    Appellant(s)

Versus

1.  Ashok Thakkar Prop. Of M/s Thakkar Builders C-91, Preet Vihar Delhi-110092

2.  K.C. Kapoor S/o Late Shri S.D. Kapoor R/o Ground Floor, C-104 Ramprastha Colony, Sahibabad District Ghaziabad, U.P.

                                           …    Respondent(s)

 BEFORE:

          HON'BLE MR. JUSTICE D.K. JAIN, PRESIDENT

HON'BLE MRS. VINEETA RAI, MEMBER

HON’BLE MR. VINAY KUMAR, MEMBER

 For Appellant(s)                    :   Dr. J.L. Chaudhary, Appellant in person

For Respondent(s)                :   Mr. Anup Kumar, Advocate for R-1

                                                Mr. Astender Kumar, Advocate for R-2

 Pronounced on 23 rd   October, 2013  

ORDER 

PER VINEETA RAI 

This First Appeal has been filed by Dr. J.L. Chaudhary, Appellant herein and Original

Complainant before the U.P. State Consumer Disputes Redressal Commission, Lucknow

(hereinafter referred to as the State Commission) being aggrieved by the order of the State

Commission which had disposed of the case by concluding that since the reliefs being claimed

fall within the provisions of the Specific Relief Act, it would be appropriate for the case to be

adjudicated before a competent Civil Court. 

2.       BRIEF FACTS:

In his complaint before the State Commission, Appellant/Complainant who is a Doctor in the

Municipal Corporation of Delhi had stated that he had approached the Respondents/Opposite

Parties No. 1 and 2, who are involved in the business of constructing and selling flats, for

purchase of a residential flat in property no. C-104, Ramprastha Colony, Sahibabad, District

Ghaziabad, U.P. Thereafter a Tripartite Agreement between the parties was entered into by

which Appellant/Complainant was offered a fully furnished second floor flat with covered area

of 297 sq. meters besides roof rights and certain other amenities for a total sale consideration of

Rs.34,00,000/- as part payment. Appellant/Complainant paid Rs.6,51,000/- vide two cheques

dated 07.05.2004 and 09.08.2004.  However, the flat finally offered to the

Appellant/Complainant was contrary to the terms and conditions of the Tripartite Agreement

since instead of 5 bedrooms only 4 bedrooms were constructed and several amenities and

facilities like safety railings, car park etc. as also roof rights were not given.  Being aggrieved,

Appellant filed a complaint before the State Commission on grounds of unfair trade practice and

claimed a sum of Rs.10,00,000/- towards mental agony and pain.

3.       Respondents/Opposite Parties challenged the above contentions through a written

rejoinder and stated that the Appellant’s complaint before the State Commission was based on a

tampered, manipulated and forged agreement, particularly the first page of the document.  It was

contended that the flat in question was constructed as per the approved plan of the Ghaziabad

Development Authority and the details were contained in the actual Agreement dated 31.05.2004

which was handed over to the Appellant/Complainant for signing which the

Appellant/Complainant retained without signing it and instead sought reliefs before the State

Commission on the basis of a forged and manipulated document, to which Respondents/Opposite

Parties were never a signatory.

4.       The State Commission, as stated earlier, had dismissed the complaint on the ground that

since the reliefs claimed by the Appellant/Complainant fall within the Specific Relief Act, he

may file the case before the competent Civil Court.  The State Commission further observed as

follows :

“Whether the agreement dated 09-06-2004 is a forged one or not, whether there is an agreement as alleged by the opposite parties at all or not, whether the complainant has committed default in performing his part of the contract or not and whether there has been default on the part of the opposite parties in fulfilling the terms and conditions of the contract or not, all these matters can only be decided on the basis of the detailed evidence and its appraisal which is obviously not possible before the Fora.”

 

5.       Being aggrieved by the order of the State Commission, the present First Appeal has been

filed.

6.       Appellant/Complainant in person and the Counsel for Respondents/Opposite Parties

essentially reiterated the submissions made by them before the State Commission.      

7.       We have considered the submissions made by the parties as also the order of the State

Commission.  We note that the Appellant and the complaint filed by him on grounds of unfair

trade practice is covered under Sub-Sections (b), (c) and (d) respectively of Section-2 of the

Consumer Protection Act, 1986 (hereinafter referred to as the Act).  The State Commission has

not decided the case mainly on the grounds that elaborate documentary evidence is required and

since specific relief is sought, the case may be decided by a Civil Court.  However, in this

connection, it may be noted that in cases filed under the Consumer Protection Act the first Court

of fact is often required to record both oral and documentary evidence, permit cross-examination

of the witnesses and seek expert opinion whenever considered necessary.  Further, Section-3 of

the Act provides an additional remedy to consumers besides those that may be available under

other laws.  The Consumer Fora have also been admitting and deciding cases of this nature

where consumers have filed complaints against builders/developers on grounds of deficiency in

service/unfair trade practice, as in the present case and as such no complex issues of law or fact

are involved which cannot be decided by the Consumer Fora.    

8.       In view of the foregoing reasons, we do not agree with the order of the State Commission

and set aside the same.  The case is, accordingly, remanded back to the State Commission to

decide it afresh in accordance with law.  Nothing stated herein may, however, be treated as a

comment on the merits of the case.  Parties are directed to appear before the State Commission

on 27.01.2014 for further directions.        

Sd/-

(D.K. JAIN, J.)

PRESIDENT

  Sd/-

(VINEETA RAI)

MEMBER   Sd/-

(VINAY KUMAR)

MEMBER

Mukesh       

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI                                                                                                        FIRST APPEAL NO. 270   OF 2009        (Against the order dated 30.06.2009  in S.C Case No.7/O/05 (Old No.83 of 2004) of the State Commission, West Bengal)                                                                                              1. Asim Kumar Chattopadhyay, S/o Late Devendra Nath Chattopadhyay Resident of 209, BT Road, 3rd Floor, Kolkata- 700036 2. Mrs. Paiya Chattopadhyay W/o Mr. Asim Kumar Chattopadhyay, Resident of 209, BT Road, 3rd Floor, Kolkata- 700036

                                                          ...... Appellants  Versus1A. Smt. Laxmi Mukherjee, Wife of Late Nilmony Mukherjee, 79, Neogi Para Road, Kolkata-70036 1B. Sri Somnath Mukherjee, S/o Late Nilmony Mukherjee, 79, Neogi Para Road, Kolkata-70036 1C. Sri Pijush Mukherjee, S/o Late Nilmony Mukherjee, 79, Neogi Para Road, Kolkata-70036 1D. Smt. Iva Goswami, D/o Late Nilmony Mukherjee W/o Sri Kartik Chandra Goswami, 191 Goswami Para Road, Post and Police Station- Bali, District- Howrah, Pin- 711201 1E. Smt. Subha Khan Bhaduri, Late Nilmony Mukherjee, W/o Sanjay Narayan Khan Bhaduri,14 Nittananda Nagar (east), PS Najirganj, Dist- Howrah, Pin- 711301 2A. Sri Prabhakar Banerjee, S/o Late Indubhusan Banerjee, 29/2/13 Motilal Maullick Lane,Kolkata- 700035 2B. Sri Saibal Mukherjee, S/o Late Nirmal Kumar Mukherjee, 79 Neogipara Road, Kolkata- 700036 (Joint executors of the estate of Late Nirmal Kumar Mukherjee (Original Respondent No.2)

                                  .....Respondents 

                          FIRST APPEAL NO. 271  OF 2009         (Against the order dated 30.06.2009  in S.C Case No.8/O/05 (Old No.84 of 2004) of the State Commission, West Bengal) Dr. Sudhanshu Sekhar Patra S/o late Sannyasi Patra R/o 209, B T Road, 3rd Floor, Kolkata -700 036, Distt- North 24 Parganas PS Baranagar 2. Mr. Nibedita Patra W/o Dr. Sudhanshu Sekhar Patra R/o 209, BT Road, 3rd Floor, Kolkata -700036, Distt-North 24 Parganas PS Baranagar

                                                          ...... AppellantsVersus1A. Smt. Laxmi Mukherjee, Wife of Late Nilmony Mukherjee, 79, Neogi Para Road, Kolkata-70036 1B. Sri Somnath Mukherjee, S/o Late Nilmony Mukherjee, 79, Neogi Para Road, Kolkata-70036 1C. Sri Pijush Mukherjee, S/o Late Nilmony Mukherjee, 79, Neogi Para Road, Kolkata-70036 1D. Smt. Iva Goswami, D/o Late Nilmony Mukherjee W/o Sri Kartik Chandra Goswami, 191 Goswami Para Road, Post and Police Station- Bali, District- Howrah, Pin- 711201 1E. Smt. Subha Khan Bhaduri, Late Nilmony Mukherjee, W/o Sanjay Narayan Khan Bhaduri,14 Nittananda Nagar (east), PS Najirganj, Dist- Howrah, Pin- 711301 2. Mr. Nirmal Kumar Mukherjee 3. Mr. Swapan Kumar Mukherjee S/o of Late Joygopal Mukherjee 79, Neogi Para Road, PS Baranagar, Kolkata- 700036 Distt- North 24 Parganas

Shri Nilmony Mukherjee has since died on 8.11.2009.....Respondents

      

                          FIRST APPEAL NO. 319  OF 2009      (Against the order dated 30.06.2009  in S.C Case No.8/O/05 (Old No.84 of 2004) of the State Commission, West Bengal) 1A. Smt. Laxmi Mukherjee, Wife of Late Nilmony Mukherjee, 79, Neogi Para Road, Kolkata-70036 1B. Sri Somnath Mukherjee, S/o Late Nilmony Mukherjee, 79, Neogi Para Road, Kolkata-70036 1C. Sri Pijush Mukherjee, S/o Late Nilmony Mukherjee, 79, Neogi Para Road, Kolkata-70036 1D. Smt. Iva Goswami, D/o Late Nilmony Mukherjee W/o Sri Kartik Chandra Goswami, 191 Goswami Para Road, Post and Police Station- Bali, District- Howrah, Pin- 711201 1E. Smt. Subha Khan Bhaduri, Late Nilmony Mukherjee, W/o Sanjay Narayan Khan Bhaduri,14 Nittananda Nagar (east), PS Najirganj, Dist- Howrah, Pin- 711301 2. (a) Sri Provakar Banerjee S/o late Indubhusan Banerjee 29/2/13, Motilal Mullick LaneKolkata – 700035 (b) Shri Saibal Mukherjee S/o Late Nirmal Kumar Mukherjee 79, Neogi Para Road Kolkata 700036 (Joint Executors of the estate of Late Nirmal Kumar Mukherjee ( Original Appellant no.2) 3. Swapan Kumar Mukherjee 79, Neogi Para Road Kolkata 700036

                                                             ...... AppellantsVersus

1. Sudhanshu Sekhar Patra S/o Late Sannayasi Patra 2. Mrs. Nibedita Patra W/o Sudhanshu Sekhar Patra Both Resident of 209, BT Road 3rd Floor,  Kolkata – 700036

                                       .....Respondents 

FIRST APPEAL NO. 320  OF 2009(Against the order dated 30.06.2009  in S.C Case No.7/O/05 (Old No.83 of 2004) of the State Commission, West Bengal) 1A. Smt. Laxmi Mukherjee, Wife of Late Nilmony Mukherjee, 79, Neogi Para Road, Kolkata-70036 1B. Sri Somnath Mukherjee, S/o Late Nilmony Mukherjee, 79, Neogi Para Road, Kolkata-70036 1C. Sri Pijush Mukherjee, S/o Late Nilmony Mukherjee, 79, Neogi Para Road, Kolkata-70036 1D. Smt. Iva Goswami, D/o Late Nilmony Mukherjee W/o Sri Kartik Chandra Goswami, 191 Goswami Para Road, Post and Police Station- Bali, District- Howrah, Pin- 711201 1E. Smt. Subha Khan Bhaduri, Late Nilmony Mukherjee, W/o Sanjay Narayan Khan Bhaduri,14 Nittananda Nagar (east), PS Najirganj, Dist- Howrah, Pin- 711301 2.Nirmal Kumar Mukherjee 79, Neogi Para Road Kolkata 700036 3. Swapan Kumar Mukherjee 79, Neogi Para Road Kolkata 700036

                                                                               ...... AppellantsVersus

 1. Mr. Asim Kumar Chattopadhyay S/o Late Devendra Nath Chattopadhyay 

2. Mrs. Papiya Chattopadhyay W/o Mr. Asim Kumar Chattopadhyay Both Resident of 209, BT Road 3rd Floor,  Kolkata – 700036

                                       .....Respondents  BEFORE:HON’BLE MRS. VINEETA RAI, PRESIDING MEMBERHON’BLE MR. VINAY KUMAR, MEMBER   IN FA No. 270-271 /2009 For the Appellant     :  Mr. Kunal Chatterji, Advocate and                                      Ms. Maitrayee Banerjee, Advocate along                                      with both appellants in person For the Respondents  :  Mr. Sukumar Pattojshi, Sr. Advocate with                                        Mr. Sanjoy Kumar Ghosh, Mr. Prabir Basu,                                        Ms. Rupali S. Ghosh, Advocates  IN FA No. 319-320 /2009 For the Appellants   :  Mr. Sukumar Pattojshi, Sr. Advocate with                                    Mr. Sanjoy Kumar Ghosh, Mr. Prabir Basu,                                    Ms. Rupali S. Ghosh, Advocates For the Appellant     :  Mr. Kunal Chatterji, Advocate and                                      Ms. Maitrayee Banerjee, Advocate  PRONOUNCED ON:  24th October, 2013 

ORDER

PER MR. VINAY KUMAR,     MEMBER

        These four appeals arise from two very similar orders passed by the West Bengal State

Consumer Disputes Redressal Commission in two independent complaints.  SC Case No.7/0/05

was filed by Mr. Asim Kumar Chattopadhyay with his wife as Complainant No.2.  SC Case

No.8/0/05 was filed by Dr.Sudhanshu Sekhar Patra with his wife as the second

Complainant.  Both complaints were against the same builders/OPs and were taken up for

consideration together, by the State Commission.

2.      In both cases, the State Commission has made the following award:-“In view of the delay in delivery of possession of the flat and withholding of

other facilities including deed of conveyance leading to various proceeding including the present one compelling the complainants to suffer mental agony as also financial loss, OPs are liable to pay to the complainants compensation of Rs.1,50,000/-.  The OPs are liable to execute and register the deed of conveyance for the sale of the flats to the complainant as no defence has been shown for not doing the same as is required to be done under the agreement. The balance consideration, if any, may be adjusted against the total compensation payable.

We direct the OPs to pay further compensation of Rs.1,50,000/- on account of the motor garage to the complainants and consideration amount will be reduced by Rs.1,00,000/- at the agreed price.

The OPs are also directed to install lift in the lift well constructed in the premises within a period of three months from this order.

The OPs are also directed to execute and register the deed of conveyance for the sale of the flats in favour of the complainants within two months from the

date of this order and in default thereof the complaints will be entitled to get the conveyance registered through the machinery of the Forum.

The OPs are directed to pay litigation cost of Rs.30,000/- to the complainant.

All payments including compensation are to be made by OPs to complainants within 60 days from the date of this order and in default the complaints will be entitled to recover the same in accordance with law along with interest at the rate of 9% per annum for the period of default.”

 

3.      In the above back ground, the four appeals are taken up for disposal through this common

order.  During pendency of these appeals, OP No.1, NilmonyMukherjee, reportedly passed away

on 8.11.2009.  His legal representatives were therefore, permitted to be brought on record.  In

another significant development, the OPs, in compliance with the direction of this Commission,

have installed and operationalised a lift in the concerned building.  A statement was made in this

behalf by learned counsel, Mr S.K.Pattjoshi on 18.8.2010 before this Commission.

4.      In both cases the Complainants have filed their appeals seeking enhancement of

compensation to Rs.18 lakhs and in respective cross appeals, prayer for setting aside the

impugned order has been made on behalf of the opposite parties. The case of the

builders/Opposite parties has been argued by MrS.K.Pattjoshi assisted by

Mr. Sanjoy Kumar Ghosh and Mr. Prabir Basu, Advocates.  On the other hand, the appeals of the

two Complainants have been argued by Mr. Kunal Chatterji, Advocate together with

Ms. Maitrayee Banerjee, Advocate.  We have perused the records of the four appeals and have

heard the respective counsels for the two sides. 

5.      The main ground pressed on behalf of the appellants/Complainants relates to failure of the

OP/builder to provide 150 sq. ft. motor garage.   As per the memorandum of appeals, the State

Commission has exceeded its jurisdiction by accepting the contention of the OPs that in view of

subsequent transfer of rear portion of their land by the OP to his sons, the provision of garage

had become impossible.  It was further argued by learned counsel for appellants/Complainants

that under Clause 3(iv) of the agreement executed between the parties, total consideration of

Rs.12 lakhs was towards a flat of 1900 sq. ft. together with a motor garage of 150 sq. ft. This

agreement is dated 31.5.2000.  By a subsequent gift deed the builder had chosen to gift away this

land which was meant for the garage.  Learned counsel further argued that even now garage can

be constructed in view of the letter written by the competent authority and Sub- Divisional

Officer, Barrackpur on 5.9.2003 to the Chairman Baranagar Municipality. Under this letter, the

gift deed was required to be treated as a nullity, in terms of the provision in Section 5 (3) of UL

(CR) Act, 1976.

6.      Mr S.K.Pattjoshi, Senior Advocate, graciously conceded the point that non provision of the

garage was a direct violation of the agreement and hence a deficiency of service. But, responding

to the argument that even now it was possible for the OPs to provide the garage, he vehemently

argued that

this Commission is  not competent to issue a direction for the same, in view of the provision in

Section 14 of the Consumer Protection Act 1986. This provision allows the consumer fora to

grant one or more of the reliefs listed therein, if they come to a conclusion that the goods or the

services, as the case may be suffered from any defects contained in the complaint.  Learned

counsel argued that while this gives wide powers to the consumer fora to grant adequate relief to

the consumer, the power under this provision does not extend to enforcing specific performance

of the contract.   The second leg of the argument of ShriPattjoshi was that the land in question

was no longer available as District Magistrate North 24 Pargana District had passed an order on

24.6.2013 vesting the same in the State, consequent upon withdrawal of exemption under the

Urban Land Ceiling Act, vide order No.1436-UL/O/II.  In the above background, learned

counsel for the appellants/Complainants argued that compensation of Rs.1.5 lakhs awarded in

this behalf by the State Commission is grossly inadequate in comparison with the enormity of the

conduct of the OPs, which has resulted in long term inconvenience to the Complainants. 

A perusal of the impugned order shows that on the question of failure to provide the garage the

State Commission has given full consideration to the evidence on record and arrived at the

following conclusion—“As regards the claim for motor garage of 150 sq. ft., we find that the same

is duly provided in the agreement.  Factually the same has not been disputed by the OPs but it is stated in their written version that the said provision was included by mistake.  It is contended that OPs are unable to provide the said motor garage as the space wherein the said motor garage was indicated in the sanctioned plan, does not belong to OPs and such space is no more available for construction of motor garage and, therefore, pleading impossibility of execution, OPs asked for refusal of the claim applying the provision of Section 12 of the Specific Relief Act.  We have considered the provisions of Section 12 as referred to.  In the present case the OPs not only provided the said motor garage in the agreement but also in the sanctioned plan by the municipality and, the OPs themselves changed the situation by making a gift of the said land in favour of their sons on 27.06.2003 long after the agreement was executed in May, 2000.  Though donees are also bound as they got the property by a deed of gift from the OPs and thus stepped into shoes of the doners but as the donees have not been made parties to this proceeding appropriate order cannot be passed against the donees.  But for not providing the motor garage in the aforesaid manner the OPs’ action became deficient in service as not only the complainants suffered inconvenience for want of motor garage and as the flats suffered in value being without the facility of motor garage because of the voluntary action of the OPs in making a gift of the property, but also sale of 150 sq. fit. being impossible, less area was being sold.”

           

7.      The above conclusion has been questioned in the appeal filed by the appellants contending

that the State Commission has illegally passed an order reducing the consideration amount of the

flat, while it does not have powers to over right the terms of the agreement between the

parties.  We find this argument completely unacceptable.  As already observed, Clause 3 (iv) of

the Agreement between the two parties very specifically provides for total consideration of Rs.12

lakhs for a flat of 1900 sq. ft. together with a motor garage of 150 sq. ft. Having deprived the

Complainant of the motor garage, in blatant and indefensible violation of the agreement, it does

not lie in the mouth of the OPs to question the conclusion reached by the State Commission that

their conduct was not only a deficiency of service but had also resulted in depriving the

Complainant of 150 sq. ft. of area included in the agreement of sale. We therefore, have no

hesitation in rejecting this argument. 

8.      On the question of compensation, the appellants/ Complainants have, as  already noted,

sought enhancement from Rs.1.5 lakhs  to Rs.18 lakhs.  Neither in the appeal memorandum nor

in the arguments of their counsels any attempt has been made to justify the basis of seeking such

multi-fold enhancement in compensation.  We have also noted that during the course of the

present proceedings, the lift has been installed in this building in the year 2010, though after a

lapse of nearly 8 years from physical delivery of flats.  We therefore, find no justification for

enhancement of compensation.

9.      From the detailed consideration above, we conclude that the orders of the State

Commission are based on correct appreciation of the evidence on record.  There are no grounds

to interfere with the same. Consequently, all four appeals are dismissed. The orders of West

Bengal State Consumer DisputesRedressal Commission in SC Case NO.7/0/05 and

8/0/05  are confirmed.  Parties to bear their own costs.  …..…………….…….……                   (VINEETA RAI)PRESIDING MEMBER                           

                               …..…………….…….…

(VINAY KUMAR)MEMBER

  S./-

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

(1)                  REVISION PETITION NO.3480  OF  2013 (Against the order dated 19.7.2013   in CC/77/2012 of the State Commission, Maharashtra, Mumbai )   M/s. Silvex Realty Ltd. Silvelx House, Nana Master Nagar, Taluka –Karjat  ( E), Distt. Raigad

                                                         ........ Petitioner (s)           Versus Srinivasan Parthasarthy 10/46, Brindavan Society Near Shrirang Society Thane (W)- 400601

                                        …….Respondent (s) 

(2)                      REVISION PETITION NO.3481  OF  2013                     (Against the order dated 19.7.2013   in CC/78/2012 of the State Commission, Maharashtra, Mumbai )   M/s. Silvex Realty Ltd. Silvelx House, Nana Master Nagar, Taluka –Karjat  ( E), Distt. Raigad                                                          ........ Petitioner (s)                             Versus Mr. Pravin Padmakar Banavalikar 1804, Valentina Building Lodha Paradise, Near Majiwade Thane (W ) – 400601

                                            …..Respondent(s) 

 (3)                      REVISION PETITION NO.3482  OF  2013                     (Against the order dated 19.7.2013   in CC/79/2012 of the State Commission, Maharashtra, Mumbai )   M/s. Silvex Realty Ltd. Silvelx House, Nana Master Nagar, Taluka –Karjat  ( E), Distt. Raigad                                                          ........ Petitioner (s)                             Versus Mr. Pravin Padmakar Banavalikar 1804, Valentina Building Lodha Paradise, Near Majiwade Thane (W ) – 400601                                             …..Respondent(s)  BEFORE:           HON'BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER           HON'BLE MRS. REKHA GUPTA, MEMBER        For the Petitioner                  :   Mr. S.K. Gupta, Advocate with                                                Mr. S.B. Bhatagunaki & Mr. Rajesh, Advocates Pronounced on :         1 st   November, 2013  ORDER         

          Petitioner/Opposite Party has filed above noted three revision petitions under Section 21(b) of

Consumer Protection Act, 1986 (for short, ‘Act’) against ex parte order dated 3.12.2012 followed by

order dated 19.7.2013 passed by the State Commission, Maharashtra (for short, ‘State

Commission’).

2.       As per averments made in the revision petitions, respondents /complainants had booked  flat

in one of the projects of the petitioner company. Respondents filed a winding up company petition

before Bombay High Court for reliefs claimed all concerning to their employment with the

petitioner which also subsequently included the claim of the flats. Thereafter, respondents filed

complaint before the State Commission for possession of flat and incidental claim. Since, settlement

talks were going on and the matter was being heard in the Bombay High Court, petitioner sought

adjournment on two dates.  On 3.12.2012 State Commission proceeded ex parte against petitioner

without written version and directed the respondents to file the affidavits in evidence. On

19.12.2012, before Bombay High court both parties argued the matter for some time and sought

time to take instructions from their respective clients so that petitions can be disposed of.   Bombay

High Court, accordingly  passed the following order;

“(i)    The parties are agreeable to get the disputes raised in both the Company

Petitions resolved through arbitration.

          (ii)       Mr. Ashish Kamat, Advocate practicing in this Court will be the Sole

Arbitrator to resolve the dispute in respect of both the references.

          (iii)      The respondent will hand over the flats to the petitioner in Company

Petition No.386 of 2011 within 60 days of receipt of NOC from his bankers or

31st March, 2012 whichever is later and to the flat of petitioner in Company

Petition No.387 of 2011 on or before 31st March, 2013, on terms and conditions

as were agreed between the parties. The letter addressed to the advocate by

Mr. Shailesh Mahadik is  taken on record.

          (iv)      The petitioner shall withdraw the complaint filed by them in the

Consumer Court and the claim of the petitioner in respect of damages and

interest raised therein will be agitated in the arbitration proceedings.

          (v)       The petitioner will be at liberty to move an application under section 9 or

17 of the Arbitration and Conciliation Act 1996, upon the statement of the

respondent that the respondent are entitled to receive balance payments from

the purchasers of flats in the companies project at Neral.

                     Petition disposed of in above terms.”

3.       It is further alleged that subsequently petitioner under the impression that the respondents

will withdraw the above said complaints and in pursuance of the same, the respondents also took

adjournment on 9.1.2013. Therefore, petitioner did not file any application for setting aside order

dated 3.12.2012. However, to the shock and surprise of the petitioner, respondents filed affidavit

in evidence on 19.7.2013 and the State Commission kept the matter for arguments on 1.10.2013.

It is further stated that on 19.7.2013, the  counsel appearing for the petitioner apprised the State

Commission about the order of the Bombay High Court but State Commission, without

application of mind had kept the matter for arguments.

4.       Hence, this revision petition.

5.       We have heard the learned counsel for the petitioner and gone through the record.

6.       It has been contended by learned counsel for the petitioner that the issue involved/reliefs

claimed in the complaints filed before the State Commission have already been decided by

Bombay High Court on 19.12.2012. As such any order passed by the State Commission after

19.12.2012 (the order of Bombay High Court) would mean that double benefits/claims are

awarded to the respondents.

7.       In R.P. No. 3480 of 2013, the respondent/complainant had sought the following reliefs in

its complaint;

          “(a)    To hold and declare that the opposite party is guilty of deficiency in service

and unfair trade practices as per the provisions of Consumer Protection Act,

1986;

          (b)     To direct the opposite party to hand over possession of flat No.201, 2nd Floor,

in the building known as “Tuscany Terraces-Ixia”, Village Dhamote, Taluka

Karjat, District Raigad, admeasuring about 831.00 sq. feet, to the complainant;

          (c)     Direct the opposite party to pay compensation of Rs.16,42,500/-, calculated

@ Rs.1,500/- per day from 01.01.2009 till 31.12.2011 and at  the same rate till

handing over of the possession;

          (d)     To direct the opposite party to complete incomplete work if any, and obtain

Occupation Certificate from the Competent Authority in respect of the Flat No.

201, 2nd Floor, in the building known as “Tuscany Terraces-Ixia”, Village

Dhamote, Taluka Karjat, District Raigad, about 831.00 sq. feet;

          (e)     To from and register Co-operative Housing Society, condominium of

apartments as the case may be and execute deed of conveyance in favour of such

society/condominium;

          (f)      To direct the opposite party to pay compensation the sum of Rs.5,00,000/-

(Rupees five lacs only) towards compensation for inconvenience, mental agony,

stress, etc. experienced by te complainant in the last three years.

          (g)     To direct the opposite party to pay the complainant the sum of Rs.50,000/-

(Rupees fifty thousand only) being the legal and other incidental expenses

incurred by the complainant;”

8.       Petitioner has mischievously and deliberately made wrong averments in  the list of events

which is apparent herein as under;

 “19.12.2012 :– The matter was settled before the Hon'ble Bombay High

Court, all the reliefs were granted to the Respondent including the

interest and damages and the Respondent was specifically directed to

withdraw the complaint before the State Commission.”

9.       According to above averments,  the matter was settled before the Bombay High Court and

all the reliefs were granted to the respondents including interest and damages and respondent was

specifically directed to withdraw the complaint before the State Commission.

10.     In this  regard, it would be pertinent to go through para (iii) of the order of Bombay High

Court, which specifically states;  

          “(iii)     The respondent will hand over the flats to the petitioner in Company

Petition No.386 of 2011 within 60 days of receipt of NOC from his bankers or

31st March, 2012 whichever is later and to the flat of petitioner in Company

Petition No.387 of 2011 on or before 31st March, 2013, on terms and conditions

as were agreed between the parties. The letter addressed to the advocate by

Mr. Shailesh Mahadik is  taken on record.”

11.     There is nothing on record to show that petitioner had handed over the possession of the

flats to the respondents,  in terms of the above directions of Bombay High Court.  Present

petitions are absolutely silent on this material aspect. Moreover, as per order of Bombay High

Court, it is clear that respondent will agitate his claim of damages and interest only in the

arbitration proceedings.

12.     Therefore, we hold that petitioner is guilty of suppression of true and material facts before

this Commission, with regard to handing over of the possession of the flats to the complainants

and thus, has tried to mislead us. On this short ground alone, present petitions are liable to be

dismissed.

13.     Be that as it may, the impugned order passed by the State Commission states;

         “Heard Mr. Jamshed Ansari, Advocate for the complainant. Opponent and

their Counsel are absent. Opponent is already proceeded ex parte without written

version. They also failed to file their evidence on affidavit. As per order dated

09/01/2013 complainant files evidence on affidavit. He undertakes to serve copy of

the same on the opponent during the course of the day. He also files pursis closing

his side of evidence. Since evidence part of the complaint is over, both the parties

are now directed to file brief notes of arguments under Regulation 13 (2) of

Consumer Protection Regulation, 2005 before the Registrar (Legal) two days

prior to the next date. Matter stands adjourned to 01/10/2013.”

14.     Above order clearly shows that petitioner itself has chosen not to appear before the State

Commission,  in spite having knowledge to this effect that the complaint filed by the respondents

are still pending before the State Commission.

15.     It is well settled that under section 21(b) of the Act, this Commission can interfere with the

order of the State Commission where such State Commission has exercised jurisdiction not

vested in it by law, or has failed to exercise jurisdiction so vested, or has acted in the exercise of

its jurisdiction illegally or with material irregularity.

16.     In the present case,  there is no illegality or infirmity in the impugned order passed by the

State Commission. Moreover, no jurisdictional  or illegal error has been shown to us to call for

interference in the exercise of power under Section 21(b) of the Act. The present revision

petitions being frivolous and  without any legal basis have been filed just to mislead this

Commission are accordingly dismissed with cost of Rs.25,000/- (Rupees Twenty Five Thousand

only) in each case.          Out of the above costs, Rs.15,000/- each, be paid to the respective

respondent by way of demand draft in their name and the remaining cost be deposited by way of

demand draft in the name of “Consumer Legal Aid Account” of this Commission,  within four

weeks.

 

17.     In case, petitioner fails to  deposit the  aforesaid costs within the prescribed, then he shall

be liable to pay interest @ 9% p.a., till realization.

18.     Costs awarded to the respondents be paid only,  after expiry of the period of appeal or

revision preferred, if any.

 19.    List for compliance on 29.11.2013.

…………………..………..J     (V.B. GUPTA)      PRESIDING MEMBER

 …………………..………..

     (REKHA GUPTA)       MEMBER

Sg. 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

 CONSUMER COMPLAINT NO.   239 OF 2012 WITH IA/6618/2013

(FOR DISMISSAL OF COMPLAINT)

  

Mohit Gupta G-85, Masjid Moth, Greater Kailash-II New Delhi-110048

                                               ……Complainant

  Versus

 The Director, Greenbay Infrastructure Pvt. Ltd. 7th floor, Insignia Building, Plot ID, Sector-126, Noida Expressway, Noida UP-201303

                                                 …….Opposite Party

 BEFORE:HON’BLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBER

          HON’BLE DR. S. M. KANTIKAR, MEMBER

For the Complainant         :   Mr. Rajesh Mahna, Mr. Ramanand Roy &

Mr. J.C. Gupta, Advocates

 For the Opp. Party            :   Mr. Subrat Deb & Mr. Bhagat Bansal, Advocates

  

PRONOUNCED   ON :     11 th   November, 2013    

ORDER

JUSTICE J. M. MALIK, PRESIDING MEMBER 

1.      Greenbay Infrastructure- the Opposite Party developed a modern township under the name

of style of Greenbay Golf Village has 9 Golf Course modern club etc.  On

04.11.2011,Mohit Gupta, complainanant applied for allotment of 750 yards plot @ Rs. 16,400/-

per sq. yd. and paid Rs. 12,30,000/- as booking amount being 10% of the basic sale price.  The

Opposite Party did not issue any receipt.  The application form also did not mention the plot

number. 

2.      Suddenly, the complainant received a demand notice dated 19.11.2011.  The said demand

notice runs as follows:-

 “Booking for a plot in, ‘ Greenbay   Golf Village’ at Sector-22D, Yamuna Expressway, Uttar Pradesh 

This is reference to your cheque no. 205431 for Rs.2,00,000/- dated 05/04/2011 of HDFC Bank Ltd. & cheque no. 956814 for Rs.10,30,000/- dated 05/04/2011 of Bank of India for booking of a Plot in Greenbay Golf Village Sector-22D, Yamuna Expressway, Uttar Pradesh.  Kindly note following payment are outstanding in respect of the booking:

Particulars Amount

Amount due against booking amount 13,50,000/-

Amount due within 45 days of booking 13,50,000/-

Amount due within 90 days of booking 13,50,000/-

Total amount payable 40,50,000/-

Less amount received 12,30,000/-

Balance payable 28,20,000/-

 

However, till date we have not received any payments against the overdue amounts.   You are now suggested to remit the amount due immediately within 7 days from the date of issue of this letter failing which we shall have no option but to terminate the application and in that case based on company policy of cancellation, which will be applicable in your case, the company reserves the right to deduct 10% of basis sale value of the unit as ‘Earnest Money’.”

 

3.      The complainant was surprised to note that new enhanced rate of Rs. 18,000/- per sq. yd.

Instead of Rs. 16,400/-  per sq. yd. was demanded.  Moreover, the complainant was required to

pay a sum of Rs. 28,20,000/-, within 7 days.  No allotment letter was sent till then.  No number

of plot was given thereon.  No formal receipt for the paid amount of Rs. 12,30,000/- was given

till the filing of this case.  The complainant met the opposite Party and they assured him that the

above deficiency would be removed.

 

4.      However, on 19.12.2011, the complainant was surprised to receive the cancellation letter,

which runs as follows:-

“Please refer our Final Notice dated 19/11/2011 requesting you to clear due

installments of Rs. 28,20,000/-.  However, we have not received any payment towards

the due installments till date.  This Cancellation Notice is being issued to you after

several attempts made to contact you in efforts to recover the money due to us.

In the circumstances of non payment of due installments, it will be difficult to continue

your booking in our Projection and therefore, we regret to inform you that Company has

decided to terminate the allotment of aforesaid unit in ‘Greenbay Golf Village.  Based

on Company Policy of Cancellation clearly mentioned in the Application Form, which

will be applicable in your case, the Company reserves the right to deduct 10% of basic

sale value of the unit as ‘Earnest Money’

You are  requested to not to do any transaction in relation to the aforesaid unit and

return the original documents of the aforesaid property issued to you to process the

cancellation proceedings.”

 

5.      On 24.12.2011, the complainant protested that he had not received any allotment letter,

area and number of the plot.  He also protested about the rate of per square yard.  He also

requested that the above said deficiencies in the Greenbay Golf Village be removed.  On

30.12.2011, the complainant contended that due to personal reasons, he was unable to hold the

above said plot.  He also prayed that booking of the above plot be cancelled and the booking

amount of Rs. 12,30,000/- be refunded at the earliest.  He wrote so many letters for the refund of

the money but the same was not refunded.

 

6.      The Opposite Party sent an intimation cum demand letter dated 25.05.2012 wherein the

price of the plot was calculated @               Rs. 16,4000/- per sq. yd.  On 12.05.2012, the

complainant however, received the allotment letter, which runs as follows:-

“Subject:  Allotment Letter- GREENBAY GOLF VILLAGE at Sector 22  D, Yaumna Expressway- Uttar Pradesh.

 

Dear Sir/Madam,

 

With reference to your Application dated 05/04/2011 we are pleased to allot PLOT NO.17

in our ‘GREENBAY GOLF VILLAGE’ Group Housing project at Sector 22 D, Yamuna

Expressway, in your favour as per the following details;

 

Super Area           :        750 sq/yrd.

Basic Sale Price :        Rs. 16,400/- Per sq/yrd.

Unit No.                 :        PLOT NO. 17,BLOCK-A

Block/Tower        :        BLOCK-A

 

As per the ‘Schedule of Payment’contained in the Application Form, a payment of Rs.

12,30,000/- (Rupees Twelve Lakhs Thirty Thousand Only) has been received.

 

Kindly note that the First installment of Rs. 12,30,000/- (Rupees Twelve Lakhs Thirty

Thousand Only) would due on 20/05/2011 i.e. within 45 DAYS OF THE BOOKING.

 

We thank you for the opportunity to serve you the look forward to having you enjoy your

unit at “GREENBAY GOLF VILLAGE”.

 

We shall keep you posted with the latest updates.

 

For M/s GREENBAY INFRASTRUCTURE PVT. LTD.”

 

7.      Vide letter dated 13.06.2013, the opposite party wrote to the complainant that they were

forfeiting the earnest amount.  The relevant para runs as follows:

“This is in continuation of our earlier Demand Letters in which we have been requesting

you to make the payment of outstanding dues in respect of the above captioned property.

          However, it is noted that despite the above mentioned letter/s and reminder/s you

have failed/neglected to make the payment of the outstanding dues in terms of the

payment plan appended with the Application Form and as

on date  a  sum  of  Rs. 47,10,141.00  (Rupees Forty-Seven Lakhs Ten Thousand One

Hundred Forty-One only) is still outstanding and payable by you.

          It may be noted that in terms of the Application Form it has been agreed by you

that “the Applicant(s) agree to comply with the terms and conditions of the Application

and Confirmation Agreement failing which the Company shall have the right to

cancel/terminate the allotment/Conformation Agreement and forfeit the entire amount of

Earnest Money, interest on delayed payment, brokerage if paid etc.  Thereafter the

Applicant(s) shall be left with no lien right, title, interest or any claim of whatsoever

nature in the said plot… The Company shall thereafter be free to resale and / or deal

with the said plot in any manner whatsoever”.

          Accordingly, in view of the wilful and persistent default by you we are constrained

to cancel the booking / Allotment of the above captioned property and forfeit the earnest

money.  The amount (s), if any, paid over and above the Earnest Money, interest delayed

payment etc., would be refunded by the Company only after realizing such amounts from

resale but without any interest or compensation of whatsoever nature.  Please note

henceforth you have not been left with any right, title or interest in the captioned property

and the Company is free to deal with the same in any manner”.

8.      Under these circumstances, the complainant filed the present complaint with the following

prayers:-

“a)        Direct the respondent to withdraw the cancellation cum termination letter 13-06-

2012 and restore the Allotment of Plot No. 17 Block A measuring 750 yards

inGreenbay Golf Village Sector 22D at Yamuna Expressway Uttar Pradesh in favour of the

Complainant.

b)         Direct the respondent to waive interest charged in various demand

Letter/Notices.  While the complainant had been pursuing to remove deficiencies.

c)          Direct the respondent to issue a fresh, revised and correct Allotment Letter revised

Payment Plan and revised Intimation Cum Demand Letter with fresh and revised dates of

payment.

d)         Award such compensation for mental agony and harassment of Rs. 5,00,000/-

and Rs. 1,00,000/- toward litigation expenses or any other sum the Hon’bleCommission

deems reasonable.

e)          Pass any other further order as the Hon’ble Commission may deem fit in the

interest of justice and equity.”

 

9.      It must be pertinent to mention here that the defense of the Opposite Party was forfeited

vide order passed by this Commission while placing reliance on Dr. J.J. Merchant

Vs. Srinath   Chaturvedi   III (2002) CPJ 8 (SC)   .  The review petition was also dismissed while

placing reliance again on Dr. J.J. Merchant Vs.   Srinath   Chaturvedi   III (2002) CPJ 8

(SC),  Unitech   Ltd. Vs. Sanjay   Goyal   &   Ors . In Civil Appeal No. 6042 of 2013

(SC)   and Kamal   Prit   Palta   &   Anr   Vs.   Vikas   Rana   &   Ors.,   Civil Appeal Nos. 4806-4807 of 2013 ,

decided on 12.07.2013 by the Hon’ble Supreme Court.

 

10.    During the pendency of this case, another SLP was filed in the Supreme Court, which

dismissed the Special Leave to Appeal (Civil) No(s). 24705/2013 in the case of “The Oriental

Insurance Co. Ltd. Versus M/s Rajankumar & Bros (IMPEX)” dated 13.08.2013, against the

order of this Commission passed in CC No. 200/2012, dated 01.07.2013. 

 

11.    However, we have heard the counsel of both the parties as the counsel for the Opposite

Party was allowed to argue on legal issues.  The learned counsel for the Opposite Party conceded

that rate of per square yard is Rs. 16,400/- though, they have been allotting the plot @ Rs.

18,000/- per sq. yd. to other customers.  It is rudimentary principle of jurisprudence that the

documentary proof will always get preponderance over the oral evidence because it is a well-

known axiom of Law that men may tell lies but the documents cannot. We have seen the

application form, which clearly, specifically and unequivocally mentions that the booking of plot

is at the rate of Rs. 16,400/-.  Subsequently, the Opposite Party in the last notice dated

12.05.2012 also admitted that the rate of plot was Rs. 16,400/- per square yard.  The admission

of this fact comes out from the horse’s mouth itself. 

12.    Secondly, the attention of this Commission was also invited towards the head of the

original application where it is clearly mentioned that the booking of plot @ Rs. 16,400/- per sq.

yd., size of the plot booked -750 yards, No. of unit- Plot No. 17, Block –A, at Greenbay Golf

Village.  However, a clear look at the said endorsement clearly goes to reveal that it was written

subsequently.  The hand-writing in the application form in both the pages are different than the

other writings.  Even if, plot No. was given at the time of filling up the form, it does not cut

much ice on this issue.  The submission made by the counsel for the Opposite Party was that

the complainant vide its letter dated 30.12.2011 had itself signified his willingness to withdraw

from this transaction.

 

13.    We are unable to locate substance in these arguments.  It appears that the Complainant was

fed up with the unnecessary demands made by the OP on various occasions. Ultimately, he

thought that it would be of no use if he hangs on with this plot. 

 14.    The last submission made by the counsel for the OP was that the opposite party is entitled

to interest because the money was not paid to it as per the schedule mentioned in their letter

dated 19.11.2011. 

 15.    It is not out of place to mention here that in this notice the rate of property was shown

as Rs. 18,000/- per sq. yd.  The complainant was under no obligation to pay the higher

amount.  The whole gamut of the above said facts and circumstances clearly go to show that the

OP was not honest in its dealings.  It is difficult to fathom why did he make demand @Rs.

18,000/- per sq.yd.  The OP has tried to play fast and loose with its customers.  His action is

below the belt.  The OP should have been honest and fair while dealing with its customers.  The

action or the OP is arbitrary, dictatorial, capacious and unreasonable.  Had it been honest,

complications should not have arisen. 

 16.    The complainant has been asking the OP that which plot has been given to him.  This was

mentioned in each and every letter. If the number was given earlier, he should have been told

repeatedly that this was his plot number, which was situated in such and such area.  Silence on

the part of the OP is pernicious.  Due to bizarre conduct of the OP, we are of the considered view

that it is not entitled to any interest.  It has been harassing the complainant for the last so many

years. It is also surprising to note that the Opposite Party has not entered into the

agreement.  Terms and conditions were not settled.  It is difficult to understand why did the OP

take the money from the Complainant and enjoyed the same for so many years without any

agreement.  The OP has succeeded to feather its own nest.

 17.  In the result we accept the complainant and cancel the cancellation-cum-termination letter

dated 13.06.2012 and restore the allotment of plot No. 17, measuring 750 sq./yards, Sector 22 D,

at Yamuna Expressway, Uttar Pradesh in favour of the complainant without charging any

interest. The Opposite Party is further directed to issue fresh, revised and correct allotment letter,

revised payment plan and revised intimation cum demand letter with revised and fresh dates and

payment, within a period of 90 days from the date of receipt of this order in accordance with

Law, terms and conditions of the agreement. OP is directed to issue these deeds within 90 days

from the date of receipt of this order otherwise, it shall be liable to pay penalty of  Rs. 500/- per

day till the needful is done.  In case the Complainant does not comply with the above said

demand, within reasonable and already specified time, it will be at liberty to proceed against the

Complainant as per Law.

 18.    Keeping in view the facts and circumstances, the complainant is also entitled to have Rs.

1,00,000/- towards litigation expenses and mental agony.  The said amount be paid within 90

days as aforesaid otherwise, it will carry interest @ 9% till its realization.

  .…..…………………………

(J. M. MALIK, J)

                       PRESIDING MEMBER  

            .…..…………………………(S. M. KANTIKAR)

            MEMBER

Jr/24

 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 472 OF 2007(From the orders dated 10.04.2007 in Complaint No.37/2000 of the Delhi State Consumer Disputes Redressal Commission)

 

B.S. Walia R/o 338, Kailash Tower-I East of Kailash New Delhi-110065

                                     …      Appellant

  Versus M/s DLF Universal Limited DLF Centre Sansad Marg New Delhi-110001

                                     …      Respondent

 BEFORE :

        HON’BLE  MR. JUSTICE  D.K. JAIN,  PRESIDENT

        HON’BLE  MRS.  VINEETA  RAI,  MEMBER

 For the Appellant       :       Mr. B.S. Walia, Appellant in person

For the Respondent    :       Mr. R. Narain, Advocate with Ms. Kanika, Advocate &

Mr. Siddharth Banthia, Advocate

 

Pronounced : 27 th   November, 2013  

O R D E R PER VINEETA RAI 

        First Appeal No. 472 of 2007 has been filed by Shri B.S. Walia, Appellant herein and

Original Complainant before the Delhi State Consumer Disputes Redressal Commission

(hereinafter referred to as the State Commission) being aggrieved by the order of that

Commission which while concluding that there was a breach of Agreement by M/s DLF

Universal Limited, Respondent herein and Opposite Party before the State Commission, had

awarded a compensation of only Rs.50,000/- which was far less than what was sought by the

Appellant and warranted in the case.

2.     The facts as contended by the Appellant are that in June, 1993 he had booked a flat in

Beverly Park (II) in DLF Qutub Enclave, Gurgaon with the Respondent after being assured that

this flat was immediately below the penthouse.  Appellant thereafter made the entire payment of

Rs.24,55,182/- as per the prescribed schedule in the Agreement, including miscellaneous

charges.  However, he was “wonderstruck” when he was informed on 24.09.1997 that the

Respondent had suo motu and arbitrarily changed the allotment of this flat to one storey below

the agreed floor as a result of which it was not immediately below the penthouse as applied for

by the Appellant and confirmed by the Respondent.  This clearly amounted to unfair trade

practice.  Further, as per Agreement the Respondent was to deliver the flat after three years but

instead of handing over the completed flat by the stipulated period, Respondent demanded

escalation costs of Rs.4,29,595/-, which the Appellant had no option but to pay under duress

whereas Respondent should have paid interest on the amount of over Rs.24,00,000/- already

deposited by the Appellant for the delayed period.  Respondent was, therefore, guilty of

deficiency in service on this count and liable for payment of interest @ 16.5% on this amount for

the delayed period in handing over possession of the flat amounting to Rs.10,78,080/- since the

flat was handed over only on 18.06.1999.  Being aggrieved by the unfair trade practice and

deficiency in service on the part of Respondent, Appellant filed a complaint before the State

Commission seeking (i) damages of Rs.5,00,000/-; (ii) interest for the delay in handing over

possession from July, 1996 to February, 1999 amounting to Rs.9,09,600/-; and (iii)

compensation of Rs.2,00,000/- towards mental agony and harassment.

3.     Respondent on being served filed a written rejoinder denying the allegations made by the

Appellant and inter alia contented that the allegation of unfair trade practice in not allotting the

flat as per the requirements of the Appellant is not borne out by the documentary evidence on

record.  Appellant himself had written a letter on 23.06.1993 to the Respondent stating that a flat

be reserved for him on the 10th floor or if it is possible on the 11th or 12th floor. Subsequently in

his formal application for allotment, he again specifically indicated that the flat No.1410-A on

the 10th floor was acceptable to him and it was also confirmed in the Apartment Buyer’s

Agreement signed between the parties.  There was never any request written or otherwise by the

Appellant that he should be allotted a flat just below the penthouse. In fact Respondent vide

letters dated 26.06.1993, 24.09.1997, 19.12.1997, 10.07.1997, 09.09.1997 and 04.08.1999 had

clearly communicated to the Appellant that flat no. 1410-A had two floors above it, including the

penthouse on the top floor.   Regarding the allegation of the Appellant that he was not liable to

pay escalation costs because of the delay in handing over possession of the flat, for which

Respondent solely was to blame, it was clearly stated in the Apartment Buyer’s Agreement that

delay could be possible on account of various factors beyond the control of the Respondent and

in the instant case the delay in handing over possession occurred because of time taken in getting

necessary government clearances.  The escalation charges demanded by the Respondent were

thus strictly in accordance with the terms of the Agreement and in fact no promise about any

particular date for handing over the flat was made. Appellant took possession of flat no. 1410-A

on 18.06.1999 and also sold the same.  Having done so, as per clause 20 of the Agreement, he

had no claim against the Respondent for any reason whatsoever and, therefore, the present

complaint filed by him was no longer maintainable.     

4.     The State Commission after hearing the parties and on the basis of evidence produced

before it observed as follows :

“8.    After hearing the counsel for the parties and according careful consideration to the documents on record as well as the version of the O.P. reproduced from the written submission of the O.P., we find that the O.P. had vide letter dated 10-07-1993 admitted the allotment of a floor which was required by the complainant, i.e. immediately below the penthouse. However, the O.P. is harping on the number of flat without realizing that it had already agreed to allot a flat below the penthouse to the complainant. Confusion is being created by the O.P. regarding the number of the flat. Thus, if the complainant has suffered any loss, it was on account of non-allotment of flat immediately below the penthouse but subsequently he was allotted the flat and it was sold also. …

 11.     Taking over all view of the matter and the breach of agreement by O.P., we deem that a lump sum compensation of Rs. 50,000/- would meet the ends of justice.”

 

        Hence, the present appeal.

5.     Appellant in person and Counsel for the Respondent made oral submissions.

6.     Appellant vehemently argued that the State Commission erred in granting him a token

compensation after having concluded that there was a clear breach of the Agreement.  Appellant

brought to our attention a letter dated 05.08.1999 in which Respondent had admitted that there

appeared to be some misunderstanding vis-à-vis numbering of the flats as communicated to the

Appellant vide Respondent’s letter dated 10.07.1993 indicating that there was no intervening

floor between the flat allotted to Appellant and the penthouse.  Appellant contended that he had

opted for flat no. 1410-A on the clear understanding that there was only the penthouse above his

flat.  He had clarified the same in writing to the Respondent on 16.07.1997 and also alleged that

it appeared that the building plans were arbitrarily changed and one more floor was constructed

between his flat and the penthouse.  Since Appellant was working abroad he was not in a

position to meet the Respondent frequently as a result of which he was misled and the sale of the

flat was foisted on him.  Appellant wanted to buy the flat for his personal use and he had no

option but to sell it because it was not as per his requirement.  Appellant, therefore, requested

that the order of the State Commission be modified and he be given the compensation and relief

sought by him before the State Commission.

7.     Counsel for Respondent denied the above allegations and stated that even Rs.50,000/- given

to the Appellant by the State Commission as compensation was not based on the merits of the

case but Respondent paid this amount to avoid unnecessary litigation.  More importantly

Appellant had accepted the decree of the State Commission without any reservations and,

therefore, the present appeal for enhancement of compensation is untenable.  It was reiterated

that the Appellant without any reservation had taken possession of the flat in question on

18.06.1999 and having done so as per the Apartment Buyer’s Agreement he had no claim against

the Respondent for any reason whatsoever.  On merits, it was contended that Appellant after

booking the flat had never indicated that he wanted only a flat on a floor just below the

penthouse.  In this connection, Counsel for the Respondent brought to our notice the letter dated

23.06.1993 from the Appellant to the Respondent requesting that “you reserve a flat for me in

your building Windsor on the 10th floor or if it is possible on the 11th or 12thfloor”.  From this

letter it is very clear that Appellant had made a specific request for allotment on the 10th floor and

reference to the higher floors was made only as an alternative.  Regarding the allegation that

there was delay in handing over possession of the flat and also that the escalation charges were

unwarranted, Counsel for the Respondent reiterated that these were covered under various

provisions in the Apartment Buyer’s Agreement entered into between the parties and, thus,

binding on the Appellant.  In view of these facts, the present appeal having no merit deserves to

be dismissed.  

8.     We have carefully considered the submissions made by the parties and have also gone

through the evidence on record.  Appellant having booked a flat in Beverly Park (II) in DLF

Qutub Enclave, Gurgaon with the Respondent is not in dispute.  It is also a fact that Appellant

had signed the Apartment Buyer’s Agreement accepting allotment of flat no. 1410-A on the

10th floor and had consequently paid for the cost of the flat.  The main point in dispute leading to

filing of the present consumer complaint is that the Respondent had misled the Appellant that the

flat allotted to him was just one floor below the penthouse whereas the Appellant after having

accepted the flat and signed the Apartment Buyer’s Agreement came to know only on

24.09.1997 that the Respondent had suo motu and arbitrarily built two floors above the flat

allotted to him, as a result of which it was not immediately below the penthouse, as applied for

by the Appellant. Apart from this, Appellant has challenged the delay in handing over the flat

and the consequent escalation charges as not being warranted.    

        After going through the evidence on record, we are unable to accept the above contentions

of the Appellant.  In this connection, we note that vide letter dated 23.06.1993 written by

Appellant to Respondent following discussions in the latter’s office, Appellant had requested that

he be reserved a flat on the 10thfloor or if it is possible on the 11th or 12 floors.  From this letter, it

is obvious that the Appellant was fully aware before having entered into the Apartment Buyer’s

Agreement that there were two floors above the 10th floor i.e. the 11th and

12th floors.  Subsequently, in the application for allotment Appellant himself had specifically

sought allotment on the 10th floor with no condition that it should be just below the

penthouse.  Some confusion regarding whether the flat was located on the 10th floor or the

11th floor may have arisen, as observed by the State Commission, because of a letter from the

Respondent dated 10.07.1993, in which Respondent had stated that the building has ground floor

+ 10 floors and, therefore, flat no. 1410-A is actually on the 11 th floor but this error was

subsequently clarified in various letters written by Respondent to Appellant.  Also in the

Apartment Buyer’s Agreement entered into between the parties on 05.01.1994  it was clearly

stated that flat no. 1410-A was on the 10th floor.  Further, as stated earlier, there is no evidence

written or otherwise that the Appellant had insisted at the time of his purchasing the flat that only

a flat below the penthouse would be acceptable to him.  It was only in 1997 when the

construction was almost completed that this issue was raised.  Appellant thereafter took

possession of the flat without any protest in 1999 and also sold the same, which lends further

credence to the Respondent’s contention that Appellant had no initial objection to the location of

the flat on the 10th floor irrespective of whether it was one or two floors below the penthouse and

this objection was only voiced in 1997 i.e. three years after he had signed the Apartment Buyer’s

Agreement. 

        Regarding the delay in handing over the possession of the flat and consequent escalation

charges levied by the Respondent and objected to by the Appellant, we note that there are

provisions pertaining to these possibilities under clauses 15, 16 and 17 of the Apartment Buyer’s

Agreement entered into between the parties and, therefore, we do not find the Respondent guilty

of any deficiency in service on this count as well.

9.     Keeping in view the above facts, we are unable to accept the present appeal and dismiss the

same with no order as to costs.    

Sd/-

(D.K. JAIN, J.) PRESIDENT

Sd/- (VINEETA  RAI) MEMBER

 Mukesh          

 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI          REVISION PETITION NO.797 OF 2013(From order dated 22.11.2012 in Appeal No.786 of 2012 of the State Consumer Disputes Redressal Commission, Delhi)

 

M/s SMV Agencies Pvt. Ltd. S-25, Green Park, New Delhi Through its Authorized Representative

                                       .... Petitioner                           VersusSh. Rajiv Bansal 506, Prahat Kiran, 17, Rajendra Place, Delhi.

                                       ..... RespondentBEFORE:

        HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER     HON’BLE MRS. REKHA GUPTA, MEMBER

 

For the Petitioner   :  Mr. Anish Verma, Advocate

 

Pronounced on: 2 nd   December, 2013

O R D E R

PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER 

      Petitioner/O.P. has filed the present revision petition under Section 21(b) of the Consumer

Protection Act, 1986 (for short, ‘Act’) against order dated 22.11.2012 passed by State

Consumer Disputes RedressalCommission, Delhi(for short, ‘State Commission’) in Appeal

No.786 of 2012.

2.   Brief facts are that on 16.08.2005, Respondent/ Complainant booked a plot of

250 Sq. Yds.  with the Petitioner in i ts coming up project at NH-24, Ghaziabad.

Respondent paid to the peti tioner in all, Rs.9,18,000/-

in installments  upto November, 2006. The petitioner in turn made provisional

allotment of plot No.F-44, Type-C, in the name of the respondent, vide letter

dated 10.11.2006. Respondent wrote to the petit ioner on 25.07.2007 to inform

about the progress of the project but peti tioner did not inform him about its

progress. On 15.01.2008 as required by submitting his affidavit before

peti tioner, the respondent stated that out of his own consent and freewill he has

cancelled/surrendered his registration for allotment, requesting the petitioner to

refund him Rs.9,18,000/- deposited by him with it  alongwith upto-date interest .

The respondent then again sent a letter dated 29.01.2008 to the petitioner, that

due to some unavoidable circumstances he wants to cancel his application for

registration of allotment, requesting the peti tioner to return his

amount alongwith update interest .

3. On 30.4.2008, petit ioner refunded Rs.7,54,000/- vide   post-dated cheque dated

31.05.2008 to the respondent by obtaining a receipt from one  Saroj  authorized

by him to collect the cheque. On 14.05.2008, respondent sent a letter to the

peti tioner asking as to why and how they had deducted Rs.1,63,800/- from his

amount and have not paid the interest. On 17.06.2008 and thereafter on

11.09.2008 vide letters, respondent again wrote to petit ioner reiterating his

earlier enquiries calling upon them to pay him Rs.1,63,800/- and the interest ,

but in vain.

4.   The respondent after serving a legal notice on the peti tioner, filed a

complaint before the District Forum with a prayer that petitioner be directed to

pay him Rs.1,63,800/- and interest thereon @24% p.a. of the period during

which his amount was lying deposited with it , besides compensation of

Rs.1,00,000/- and the costs.

5.   The petit ioner opposed the claim and fi led i ts written version denying that

there was no development in the project, and averred that while applying for

cancellation of registration, the respondent relinquished all his rights and in

receipt issued by his authorized representative in l ieu of cheque on 30.04.2008,

he relinquished all his claims in the plot and respondent had received the refund

with full understanding of the terms of the company, that in case of pre-mature

cancellation the petitioner shall be entitled to retain 10% of the costs of the unit

and other incidental charges, which i t had deducted and it denied any unfair

trade practice on i ts part.

6. On consideration of evidence of both the parties   and after

hearing them,District  Forum decreed the claim of the respondent, directing the

peti tioner to refund the complainant a sum  Rs.1,63,000/-and interest @9% on

all deposits and also an amount of Rs.50,000/-towards the compensation.

7.   Being aggrieved, petit ioner filed an appeal before the State Commission,

which modified the order of the District Forum and reduced the compensation

amount from Rs.50,000/-to Rs.25,000/- and directed that;“The appellant will pay the respondent interest @9% on his amount of Rs.9,18,000/- for nine months, Rs.16,300/- along with interest@9% from November 2006, t ill the date of payment and Rs.25,000/-(Rs. Twenty Five Thousand) as compensation besides the lit igation costs Rs.5,000/- (Rs. Five Thousand) within one month from the date of receipt of this order in his office”.  

                                                                           8.    Hence, this revision. 

9.   It has been contended by learned counsel for the  peti tioner, that  since full

and final sett lement has already been concluded between the parties, respondent

is not entitled to refund of any amount. Thus, both the  Fora below have

committed an error.

10.  It has been further contended that respondent on its own has asked for

refund of the amount and the same was refunded as per terms and conditions of

the Petitioner’s Company policy, that in case of pre-mature cancellation,

peti tioner shall be entitled to retain 10% of the cost of the unit and other

incidental charges. Since, respondent has received the full and

final  payment,now it does not l ie in his mouth to claim any amount from the

peti tioner. Further, learned counsel for petitioner has relied upon a decision of

this Commission reported asSummit  Chaudhary Vs. Haryana Urban Development

Authority & Ors. IV (2011) CPJ 570 (NC).

11. The only question which  arise for consideration is as to whether petitioner is

entitled to deduct a sum of 10% out of the amount deposited by the respondent,

when respondent i tself has sought for the refund of the amount.

12. As as per the terms and conditions of the allotment(copy placed at page 33-

34 of the Paper-book)it has nowhere been mentioned that in case an  allottee ask

for the refund of the amount, then   peti tioner would be entit led to deduct 10% of

the cost of the Unit and other incidental charges. Petitioner has tried to

introduce a new case before the State Commission as well as before this

Commission for the first t ime, regarding deduction of 10% of the amount

deposited by the respondent. Further, it transpires from the record that

Certificate of Registration dated 10.2.2006, issued in favour of the petit ioner

for the purpose of Land Assembly, Infrastructure Development and Construction

Works for Housing Schemes within Ghaziabad Planning area, was valid for a

period of two years only from the date of issue. Similarly, as per copy of Grant

of License, it is valid  upto 28.05.2008. Hence, there is nothing on record to

show that at the t ime of fi ling of the complaint by the respondent, petit ioner had

any valid Certificate of Registration as well as License in its favour. In the

absence of these necessary documents, it is manifestly clear that petit ioner has

been indulging in unfair trade practices and has been  mis-leading the allotees.

13. In this regard the State Commission has rightly observed as under;                 “Nevertheless in absence of there being any agreement between

the appellant(OP) builder and the respondent buyer that in case the respondent (buyer) seeks refund at his own the builder (seller) will deduct some amount at the t ime of refund, the appellant builder was wholly unjusti fied in making 10% deduction while refunding the amount to the respondent. The District Forum is therefore wholly justif ied to order the OP to refund of the amount to the complainant, which OP deducted from his amount at the time of refund but only  alongwith interest @9% till the date of refund of this amount only, and not all deposits as ordered by the Forum”.

 

14.  Decision of  Summit  Chaudhary (Supra)  is not applicable to the facts of the

present case at all.

15. Under section 21(b) of the Consumer Protection Act,1986, this Commission can interfere with the order of the State Commission only where such State Commission has exercised jurisdiction not vested in it by law, or has failed to exercise jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.

16.  We do not find any reason to disagree with the findings given by the State Commission, that there was no provision of deducting of 10% of the amount from the cost of the Unit and the same has been illegally deducted by the petitioner. Hence, there is no ambiguity or irregularity in the impugned order passed by the State Commission.  The present revision petition has no merit at all and the same being without any legal basis, is hereby dismissed with cost of Rs.10,000/-(Rupees Ten Thousand only.

17.     Petitioner is directed to deposit  the above cost  by way of demand draft in the name of

“Consumer Legal Aid Account” of this Commission, within four weeks from today.

18.  In case, petitioner fails to deposit the cost within the prescribed period, then it shall also be

liable to pay interest @ 9% p.a., till realization.

19.  List on 10th January, 2014 for compliance.

                                     ……..……………………J

                                           (V.B. GUPTA)  (PRESIDING MEMBER)

                                    …………………………                     (REKHA GUPTA) MEMBER

SSB/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

 

REVISION PETITION NO.   2259 OF 2008  (From the order dated 09.01.2008 in First Appeal No. 268 of 2007 @ Misc. Appl. No. 371/2007 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai)

                                          

M/s. Shree Construction C/o Bharati Industries Sonapur, LBS Marg, Mumbai – 400078

                                     …  Petitioner/Opp.Party (OP)

Versus1. Mr. Suryakanth Parshuram Sawant D-233, Surya Darshan, G.D. Ambedkar Marg Parle,

Mumbai – 400012 

2. M/s. Vastu Promoters & Consultants 8/17, Sahyadri Nagar, Charkop Kandivali (W), Mumbai – 400067

                               …  Respondents/Complainants

 

REVISION PETITION NO.   2447 OF 2008  (From the order dated 09.01.2008 in First Appeal No. 274 of 2007 @ Misc. Appl. No. 377/2007 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai)

 

M/s. Shree Construction C/o Bharati Industries Sonapur, LBS Marg, Mumbai – 400078

Versus1. Smt. Yogeeta Yashpal Vijan Building No. 20, Flat No. 318, M.H. Road, Sardar Nagar – 4,

Antup Hill, Mumbai – 400012 

2. M/s. Vastu Promoters & Consultants 8/17, Sahyadri Nagar, Charkop Kandivali (W), Mumbai – 400067

                                …  Respondents/Complainants

 

 

REVISION PETITION NO.   2448 OF 2008  (From the order dated 09.01.2008 in First Appeal No. 273 of 2007 @ Misc. Appl. No. 376/2007 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai)

 

M/s. Shree Construction C/o Bharati Industries Sonapur, LBS Marg, Mumbai – 400078VersusVersus

1. Mr. Kantilal Ambalal Thakr 24/402, Telang Road Agarwal Niwas, 2nd Floor, Matunga,  Mumbai – 400019

 2. M/s. Vastu Promoters & Consultants 8/17, Sahyadri Nagar, Charkop Kandivali (W), Mumbai – 400067

                               …  Respondents/Complainants

 

REVISION PETITION NO.   2449 OF 2008  (From the order dated 09.01.2008 in First Appeal No. 272 of 2007 @ Misc. Appl. No. 375/2007 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai)

 

M/s. Shree Construction C/o Bharati Industries Sonapur, LBS Marg, Mumbai – 400078

Versus1. Smt. Rekha Ramesh Gawad B-305, Sudha Palace, Near Chate Classes, Viratnagar, Virar,

Mumbai – 401303

 2. M/s. Vastu Promoters & Consultants 8/17, Sahyadri Nagar, Charkop Kandivali (W), Mumbai – 400067

                               …  Respondents/Complainants

REVISION PETITION NO.   2581 OF 2008  (From the order dated 09.01.2008 in First Appeal No. 267 of 2007 @ Misc. Appl. No. 370/2007of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai)

 

M/s. Shree Construction C/o Bharati Industries Sonapur, LBS Marg, Mumbai – 400078

Versus1. Mr. Milind N. Deshmukh Shivkrupa C/o Deshmukh Oil Mills, Ketan Nagar, Margarule Road

    Mumbai – 400012

 2. M/s. Vastu Promoters & Consultants 8/17, Sahyadri Nagar, Charkop Kandivali (W), Mumbai – 400067

                               …  Respondents/Complainants

 

REVISION PETITION NO.   2582 OF 2008  (From the order dated 09.01.2008 in First Appeal No. 269 of 2007 @ Misc. Appl. No. 372/2007 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai)

 

M/s. Shree Construction C/o Bharati Industries Sonapur, LBS Marg, Mumbai – 400078

Versus1. Mr. Arun Balkrishna Narvankar 9A, Narmada Niwas, First Floor,

J.K. Sawant Road, Dadar (W), Mumbai – 400028

 2. M/s. Vastu Promoters & Consultants 8/17, Sahyadri Nagar, Charkop Kandivali (W), Mumbai – 400067

                               …  Respondents/Complainants

 

REVISION PETITION NO.   2583 OF 2008  (From the order dated 09.01.2008 in First Appeal No. 270 of 2007 @ Misc. Appl. No. 373/2007 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai)

 

M/s. Shree Construction C/o Bharati Industries Sonapur, LBS Marg, Mumbai – 400078

Versus1. Mr. Arun Sitaram Kushe 111, 2/5, MESB Quarters (Staff) Inside  National Park, Borivali (E)

Mumbai – 400066

2. M/s. Vastu Promoters & Consultants 8/17, Sahyadri Nagar, Charkop Kandivali (W), Mumbai – 400067

                               …  Respondents/Complainants

 

REVISION PETITION NO.   2584 OF 2008  (From the order dated 09.01.2008 in First Appeal No. 271 of 2007 @ Misc. Appl. No. 374/2007 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai)

 

M/s. Shree Construction C/o Bharati Industries Sonapur, LBS Marg, Mumbai – 400078

Versus1. Mr. Rajen Chandulal Shah 217/A, I – Karol , 27th Road TPS (E), Bandra (E) Mumbai –

400050

2. M/s. Vastu Promoters & Consultants 8/17, Sahyadri Nagar, Charkop Kandivali (W), Mumbai – 400067

                               …  Respondents/Complainants

 

BEFORE: 

HON'BLE MR. JUSTICE K. S. CHAUDHARI, PRESIDING MEMBERHON’BLE DR. B C. GUPTA, MEMBER       

For the Petitioner                     : MR. Anand Padmanabhan &

    Mr. Mohd. Wasay Khan, Advocates

For the Respondents No. 1     : Mr. Arun S. Kushe, in person in RP

    No. 2583/2008 and AR of other

    Respondents No. 1

 

For the Respondents No. 2     : Ex parte

 

PRONOUNCED   ON     2 nd     December,     2013

 O R D E R 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER  

All these revisions arise out of separate judgments dated 9.1.2008 in appeals filed against

judgments of the District Forum.  Accordingly, the revisions were heard together and are being

disposed of by common order.

          These revision petitions have been filed by the petitioner against the orders dated 9.1.2008

passed by Maharashtra State Consumer Disputes Redressal Commission, Circuit Bench at

Aurangabad (in short, ‘the State Commission’) in Appeal Nos. 2259/08, 2447-2449/08 &

2581/08 to 2584/08 – M/s. Shree Construction Vs. Suryakant Parshuruam Sawant &Anr., M/s.

Shree Construction Vs. Smt. Yogeeta Yashpal Vijan & Anr., M/s. Shree Construction

Vs. Kantilal Ambalal Thakur & Anr., M/s. Shree Construction Vs.

Smt. Rekha RameshGawad & Anr., M/s. Shree Construction Vs. Milind N. Deshmukh & Anr.,

M/s. Shree Construction Vs. Arun Balkrishna Narvankar & Anr., M/s. Shree Construction

Vs. Arun SitaramKushe & Anr. & M/s. Shree Construction Vs. Rajen Chandulal Shah

& Anr. by which, while dismissing appeals, order of District Forum allowing complaints were

upheld.

 

2.      Brief facts of the case are that complainant/Respondent entered into an agreement with OP

No. 1/Respondent No. 2 for purchase of residential accommodation in proposed

“Grahashanti Apartment” for which, OP No. 1 had paid Rs.6,64,600/- to OP No. 2.  Complainant

was informed that construction will start on 10.6.1992 and will be ready for possession before

31.12.1993.  It was further alleged that OP Nos. 1 & 2 entered into Memorandum of

Understanding (MOU) in June, 1992 and OP No. 1 was referred as sole selling agent for selling

flats, shops, etc. to be constructed on the property.  It was further alleged that till today, no

construction has been made.  Alleging deficiency on the part of OP, complainants filed separate

complaints before District Forum.  OP No. 1 resisted complaint and submitted that

Mr. Balu Sadashiv Narkhede was one of the partners of OP No. 1, who illegally entered into

transaction which is not binding on OP No. 1.  It was further submitted that OP No. 1 paid

Rs.6,64,600/- to OP No. 2 and in such circumstances, onus was entirely on the OP No. 2 to carry

out construction or to give compensation to the purchasers and prayed for dismissal of

complaints.  OP No. 2 also filed written statement, denied receipt of Rs.6,64,600/- from OP No.

1 and denied other allegations and further submitted that complaint was barred by limitation and

prayed for dismissal of complaint.  Learned District Forum after hearing both the parties allowed

complaint and directed OPs to refund the amount jointly and severally with interest @ 12% p.a.

and further imposed cost and compensation.  Appeals filed by the appellant were dismissed by

learned State Commission vide impugned orders against which, these revision petitions have

been filed.    

 

3.      None appeared for the Respondent No. 2 even after service.

 

4.      Heard learned Counsel for the petitioner and respondent No. 1 and his representative and

perused record.

 

5.      Learned Counsel for the petitioner submitted that there was no privity of contract between

the petitioner and Respondent No. 1 and petitioner has not received any amount from respondent

even then learned District Forum has committed error in allowing refund of the amount and

learned State Commission further committed error in dismissing appeals; hence, revision

petitions be allowed.  On the other hand, authorized representative of the respondents submitted

that order passed by the State Commission is in accordance with law; hence, revision petition be

dismissed.

 

6.      Perusal of impugned order reveals that order of District Forum was upheld as Respondent

No. 2 was sole selling agent of the petitioner and respondent No. 2 received payment from

Respondent No. 1; so, petitioner was bound to refund the money. It was further observed that

‘The Site Worship Ceremony’ invitation was extended jointly by petitioner and Respondent No.

2; so, both are liable to refund the amount.

 

7.      Perusal of record reveals that Memorandum of Understanding was executed between

petitioner and Respondent No. 2 and petitioner appointed Respondent No. 2 as

promoter/consultant/sole selling agent for selling the flats, etc.  In paragraph 12 of the MOU,

petitioner agreed and assured not to increase the rate of Rs.565/- per sq. ft. built up area.

 

8.        Paragraph 14 of the MOU runs as under:

“14.   It is agreed between the parties that the Promoters/Agents are entitled and free to book the said flats as per their sweet will and wish, and at the rate which they may deem fit/desire and in such cases, the

Developers are not entitled for any increase etc. on such flats booked by the Promoters/Agents either directly and/or through any other agents. It is further agreed between the parties that the Developers are not entitled to sell/resale the said flats to any other Promoters/Agents/Company/Persons.”

 

 

9.      Paragraph 14 thus makes it clear that all built up area was to be sold by Respondent No. 2

at any rate which they deem fit and petitioner had no right to sell/resale constructed flats to any

other party, meaning thereby, petitioner sold built up area to Respondent No. 2 and in pursuance

of this MOU, Respondent No. 2 entered into MOU with Respondent No. 1 for sale of the

flat.  Proviso at page 5 of the MOU entered between Respondent No. 1 & Respondent No. 2 runs

as under:

“Provided further that upon termination of this Agreement as aforesaid the promoter shall refund to the flat purchaser the inslalments of sale price of the said flat which may till then have been paid by the Flat Purchaser to the Promoter.  The promoter shall not be liable to pay to the flat purchaser any interest on the amount so refunded and upon termination of this Agreement and refund of such amount by the promoter, the promoter shall be at liberty to dispose and at such price and on such conditions as the promoter may in their absolute discretion think fit”.

 

 

10.    Thus, proviso makes it crystal clear that on the termination of the agreement, Respondent

No. 2 was liable to refund the amount received from Respondent No. 1 without interest and

nowhere liability has been fastened on the petitioner to refund the amount received by

Respondent No. 2 from Respondent No. 1. In such circumstances, it cannot be presumed that

Respondent No. 2 sold the flats to Respondent no. 1 as agent of petitioner, but it appears that

petitioner sold the constructed built up area to Respondent No. 2 who in turn entered into MOU

with Respondent No. 1 for sale of flats and in pursuance to that MOU, Respondent No. 2

received money.  Liability to refund the money on termination of the MOU was only of

Respondent No. 2 and petitioner was not liable to refund the amount firstly, there was

no privity of contract between the petitioner and Respondent No. 1 and secondly, petitioner has

not received any amount from the Respondent No. 2, which was collected by him from

Respondent No.1.

 

11.    Thus, it becomes clear that Respondent No. 2 has not received money from Respondent no.

1 as agent of petitioner and learned District Forum has committed error in holding petitioner also

liable for refund of money and learned State Commission has committed error in dismissing

appeal of the petitioner.

 

12.    Respondent No. 2 has not filed any appeal against the order of District Forum and

Respondent No. 1 is free to recover the whole amount from Respondent No. 2.

 

13.    Consequently, revision petitions filed by         the petitioner are allowed and impugned

orders dated 9.1.2008 passed by learned State Commission in Appeal Nos. 2259/08, 2447-

2449/08 & 2581/08 to 2584/08 – M/s. Shree Construction

Vs. Suryakant Parshuruam Sawant & Anr., M/s. Shree Construction Vs.

Smt. Yogeeta Yashpal Vijan & Anr., M/s. Shree Construction Vs. Kantilal Ambalal Thakur

& Anr., M/s. Shree Construction Vs. Smt. Rekha Ramesh Gawad & Anr., M/s. Shree

Construction Vs. Milind N. Deshmukh & Anr., M/s. Shree Construction

Vs. Arun Balkrishna Narvankar & Anr., M/s. Shree Construction

Vs. Arun Sitaram Kushe & Anr. & M/s. Shree Construction Vs. Rajen Chandulal Shah

& Anr. and order of District Forum to the extent allowing complaints against petitioner are set

aside.  There shall be no order as to costs.

         

..……………Sd/-……..………

     (K. S. CHAUDHARI, J)

      PRESIDING MEMBER

   ……………Sd/-….……………

                                                        (DR. B. C. GUPTA)

                                     MEMBER

k

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

 

REVISION PETITION NO. 3889 OF 2013

(From the order dated 23.07.2013 in First Appeal No. 76/2013 of Mahrashtra State Consumer Disputes Redressal Commission)

Magan r/o House No. 104, R-27, Mhada Colony, Near Baliram Patil High School, N-9, CIDCO, Aurangabad – 431001.

... Petitioner

  Versus

1. M/s Tapadiya Construction Ltd., Through its Executive Director, Jugalkishor r/o Samarthnagar, Aurangabad

2. M/s Kasliwal Construction Ltd. Through its Proprietor, Sanjay r/o N-3, CIDCO, Aurangabad

… Respondent(s)

 BEFORE

HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

HON’BLE DR. B.C. GUPTA, MEMBER

 APPEARED AT THE TIME OF ARGUMENTS 

For the Petitioner(s)  Mr. Rahul G. Joshi, Advocate

 PRONOUNCED ON : 9 th DECEMBER 2013

O R D E R 

PER DR. B.C. GUPTA, MEMBER 

This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 23.07.2013, passed by the Maharashtra State Consumer Disputes Redressal Commission (for short ‘the State Commission’) in FA No. 76 / 2013, “Magan versus M/s. Tapadiya Construction Ltd. & Anr.”, vide which while dismissing appeal, the order dated 08.12.2011 passed by District Consumer Disputes Redressal Forum, Aurangabad, partially allowing the consumer complaint no. 85/2011, was upheld.

 

2. Brief facts of the case are that the respondents/OPs no. 1 & 2 are builders and developers and have launched a Scheme at Deogiri Valley of village Mitmita, Aurangabad for construction of houses. The petitioner/complainant booked a row-house with the OPs and vide agreement dated 08.10.2007 agreed to purchase 3 BHK row-house bearing number A65 in the scheme for consideration of Rs.4,95,000/-. He deposited booking charge of `5,000/- and as per his version, he made a total deposit of `75,000/- before the agreement, although the agreement says that he has deposited only `30,000/-. As per the agreement, the remaining amount was to be paid within one month from the date of agreement and the OPs/Builders had agreed to hand-over possession

of the house within five months from the agreement. It was also stated that the petitioner shall pay an interest @3% per month for delayed payment. It has been stated in the complainant that he had shifted to Osmanabad and also remained seriously ill for four months. The respondents cancelled the said agreement. The petitioner filed the consumer complaint in question, saying that the booking amount of `5,000/- paid by him and his deposit of `75,000/- should be paid to him along with interest @18% p.a. and also a sum of `50,000/- should be given to him as compensation for mental harassment and loss. The District Forum vide their order dated 8.12.2011, directed that respondent no. 2 should make payment of `30,000/- to the complainant. An appeal filed against this order was dismissed by the State Commission vide impugned order dated 23.07.2013. It is against this order that the present petition has been made before us.

 

3. At the time of admission hearing, learned counsel for the petitioner stated that although the petitioner had paid a sum of `75,000/- to the opponents, but in the agreement, they had recorded payment of only `30,000/-. He further stated that the amount of `75,000/- should be returned to him alongwith interest @18% p.a. The petitioner was also ready to pay the balance amount of `4.20 lakh and get the possession of the house in question. The cancellation of the allotment of the said house in favour of the petitioner amounted to deficiency in service on the part of the respondents.

 

4. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. A perusal of the agreement entered between the parties on 08.10.2007 for row house no. A-65, and duly signed by the Petitioner/Complainant and respondent/OP makes it explicitly clear that the petitioner paid a sum of `30,000/- to the OP Company as part payment of the purchase price of the said house. It has also been stated that if he fails to pay the remaining amount on stipulated time, he shall have to pay interest on the balance amount @3% per month for delayed payment and maximum delay of two months will be condoned and thereafter, the agreement will automatically stand cancelled, without any further notice for the same. It has also been laid down that the builder will refund only 70% of the amount deposited by the purchaser. The petitioner/complainant has admitted in his complaint that because of his shifting of place and illness, he was not able to make the balance payment in time. The petitioner has not been able to prove anywhere that he had given a sum of `75,000/- to the opponents. Therefore, the opponents have every right to cancel the allotment for violation of the terms and conditions of the agreement and hence, it cannot be stated that they have indulged in any deficiency in service qua the petitioner. The District Forum after carrying out detailed analysis of the facts and circumstances of the case, ordered to refund `30,000/- to the petitioner as per the amount stated in the agreement. This order has been upheld by the State Commission in Appeal. We do not find any legal infirmity, irregularity or jurisdictional error in the orders passed by the State Commission and the District Forum. These orders are, therefore, affirmed and the present revision petition is ordered to be dismissed at admission stage with no order as to costs.

Sd/-

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

 

Sd/-

(DR. B.C. GUPTA)

MEMBER

RS/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 3929 OF 2013

(From the order dated 12.8.2013 in Appeal No. 430/2013 of the Haryana State Consumer Disputes Redressal Commission, Panchkula)

 Sh. Ashok Kumar Garg S/o Sh. Laxmi Narain R/o BN-74 (West), Shalimar Bagh, Delhi

…Petitioner/Complainant VersusM/s. Mera Baba Real Estate Pvt. Ltd. Corporate Office: 551, Aggarwal Cyber Plaza Tower-B,Netaji Subhash Place, Pittampura, New Delhi – 110034.

…Respondent/ Opp. Party (OP)

 BEFORE

HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioner : Mr. Vikas Deep, Advocate

PRONOUNCED ON 11 th December , 2013

 O R D E R

PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER  

This revision petition has been filed by the petitioner against the order dated 12.08.2013

passed by Haryana State Consumer Disputes Redressal Commission, Panchkula (in short, ‘the

State Commission’) in Appeal No. 430/2013 – Sh. Ashok Kumar Garg Vs. M/s. Mera Baba Real

Estate Pvt. Ltd. by which, while allowing appeal, order of District Forum dismissing complaint

was set aside and matter was remanded.

 

2. Brief facts of the case are that complainant/petitioner booked a plot with OP/respondent by depositing 20% of the price of the plot vide receipt dated 31.3.2006. OP booked the aforesaid plot without obtaining any licence from Director Town and Country Planning, but later on it was issued to the OP on 3.12.2007. Possession of the plot was to be delivered to the complainant within 12 months from the date of booking. Alleging deficiency on the part of OP in not giving possession of plot complainant filed complaint before District forum. OP resisted complaint and submitted that complainant failed to make payment of balance instalments despite repeated requests and reminders; so, possession of plot could not be delivered to him and prayed for dismissal of complaint. Learned District Forum after hearing both the parties dismissed complaint being barred by limitation, as plot was booked on 31.3.2006 and complaint was filed after 6-7 years. Complainant filed appeal before State Commission and learned State Commission vide impugned order treating complaint in limitation allowed appeal and remanded the matter for deciding complaint on merits against which, this revision petition has been filed.

 

4. Heard learned Counsel for the petitioner at admission stage and perused record.

 

5. Learned Counsel for the petitioner submitted that learned State Commission ought to have decided appeal on merits also and has committed error in remanding the complaint; hence, revision petition be admitted and impugned order be set aside and State Commission be directed to decide appeal on merits.

 

6. Perusal of record clearly reveals that learned District Forum dismissed complaint as barred by limitation whereas learned State Commission in appeal treated complaint within limitation and remanded the matter to District Forum for deciding complaint on merits.

 

7. As District Forum dismissed the complaint as barred by limitation, learned State Commission was right in remanding the matter to District Forum for decision on merits after treating the complaint within limitation. State Commission could not have decided appeal on merits as District Forum has not dealt the complaint on merits. We do not find any infirmity, irregularity or jurisdictional error in order of remand passed by learned State Commission and revision petition is liable to be dismissed at admission stage. We are not deciding legality of order of learned State Commission treating complaint in limitation.

 

8. Consequently, revision petition filed by the petitioner is dismissed at admission stage with no order as to costs.

………………Sd/-……………

( K.S. CHAUDHARI, J)

PRESIDING MEMBER

 

..……………Sd/-………………

( DR. B.C. GUPTA )

MEMBER

k

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

 

REVISION PETITION NO. 1596 OF 2012

(From order dated 20.12.2011 in First Appeals No.1317 of 2010 and 548 of 2011 of the State Consumer Disputes Redressal Commission, Maharashtra, Mumbai)

 

M/s Vora Land Developers through Mr. Shailesh P. Vora, Partner, A/13, Dattani Tower, 1 st

Floor, Kora Kendra, S. V. Road, Borivali(W), Mumbai-400092

.... Petitioner

  Versus

Mr. Jayantilal Hirji 4, Jyoti Puja Society, Takale Nagar, Panchavati, Nashik, Maharashtra

..... Respondent

BEFORE:

HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER

HON’BLE MRS. REKHA GUPTA, MEMBER

For the Petitioner : Mr. Subodh Gokhale, Advocate

 

Pronounced on: 16 th December, 2013

O R D E R

PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER

Petitioner/O.P. being aggrieved by order dated 20.12.2011 passed by State Consumer

Disputes Redressal Commission, Maharashtra, Mumbai (for short, ‘State Commission’) has

filed the present revision petition under Section 21(b) of the Consumer Protection Act,1986

(for short, ‘Act’).

2. Respondent/Complainant filed a Consumer Complaint before the Consumer Disputes

Redressal Forum, Mumbai (for short, ‘Consumer Forum’)on the allegations that Petitioner-firm

who is Builder/Developer decided to construct buildings and respondent agreed to purchase a

flat admeasuring about 885 Sq. Ft. in built-up area in the Scheme-‘Highland Project’, for an

agreed consideration of Rs.10,62,000/-The Petitioner executed a registered agreement for sale to

that effect in favour of the respondent on 8.10.2001. Respondent paid booking amount of

Rs.10,000/-.Thereafter, paid an amount of Rs.3,83,114/-in cash for which Petitioner issued a

receipt in writing. Possession of the flat was agreed to be delivered to the respondent as early as

possible. It is alleged that the construction work was stopped by the petitioner and there has been

no progress of construction on account of which, there has been delay in delivery of possession

of the flat by the petitioner to the respondent. It is further alleged that respondent sent three

letters to the petitioner reminding it of the agreement regarding the flat and called upon it to

complete the construction and put him in possession, but in vain. Thereafter, respondent sent a

legal notice dated 10.5.2007 to the petitioner and when that notice was also not complied with,

respondent filed a complaint before the Consumer Forum seeking direction against the petitioner,

to deliver vacant and peaceful possession of the flat in question besides payment of

compensation in sum of Rs.1,00,000/- or in the alternative to direct the petitioner to pay the cost

of the flat, that is, Rs.10,62,000/- together with interest @ 24% p.a., on the amount in sum of

Rs.3,93,114/-, which was received by the petitioner from the respondent towards part-

consideration for the said flat.

3. Petitioner in its written version stated that the construction of the project-‘Highland Park’

was undertaken by it but in the midst of construction, ‘Stop Work Notice’ dated 19.09.2002 was

issued by the Municipal authorities, on account of which the construction activity was stopped.

Then, a notice under the Monopolies and Restrictive Trade Practices Act, 1966 was issued by the

competent authorities on 23.09.2002, asking the petitioner to demolish all the floors above the

first floor. It is stated that in the year 2003, one Mr. Rajendra Thakkar, alongwith other citizens,

filed a Public Interest Litigation bearing Writ Petition No. 379 of 2003 before Bombay High

Court against Municipal Corporation of Greater Mumbai, on the issue of permission being

granted to the builders for additional FSI. In that public interest litigation, Mr.J. S. Sane, Chief

Engineer, Municipal Corporation of Greater Mumbai; filed his affidavit and annexed to his

affidavit was a list of projects and ‘Highland Project’ came to be included in that list. Thus,

present project became subject matter of that public interest litigation. Thereafter, Bombay High

Court passed an order on 5.5.2004, asking the Municipal Commissioner to consider the

regularization of the buildings subject to the satisfaction of the provisions contained in the

Development Control Regulations. Thus, according to the petitioner, unless the FSI is

regularized, the work of the said project cannot be completed. Thus, petitioner has denied

allegations that it is guilty of deficiency in service and has denied the allegations as regards its

liability to pay compensation to the respondent.

4. Consumer Forum, vide order dated 7.10.2010 allowed the complaint and passed the

following directions;

“[2] The office of this Forum is hereby directed to release in favour of

the Complainant, an amount in sum of Rs.3,93,114/- deposited with this

Forum on 19/March/2008 and invested in a Fixed Deposit Receipt

together with interest accrued thereon, if any after appeal period is over.

[3] The Opposite Party is hereby directed to pay to the Complainant

interest @ 18% p.a., on the amount of Rs.3,93,114/- as from 08/Oct/2001

till 19/March/2008.

[4] The Opposite Party shall also pay to the Complainant, an amount

in sum of Rs.10,62,000/- by way of compensation.

[5] The Opposite Party is further directed to pay to the Complainant,

costs in sum of Rs.10,000/-.

[6] The Opposite Party shall comply with the foregoing order within a

period of eight weeks from the date of receipt of copy of this order failing

which, the Opposite Party shall also be liable to pay to the Complainant,

interest @ 12% p.a., on the entire awarded amounts as from the date of

expiry of stipulated period of eight weeks till realization of entire amount

by the Complainant”.

5. Aggrieved by the order of the Consumer Forum, Petitioner filed (First Appeal No.1317

of 2010) before the State Commission, whereas, respondent being not satisfied with the

alternative relief granted in his favour also filed (First Appeal No.548 of 2011) seeking

possession of the flat in question.

6. In (First Appeal No.548 of 2011) filed by the respondent, there was delay of 218 days. The

State Commission, vide impugned order rejecting the application for condonation of delay,

consequently, dismissed the appeal of the respondent. Further, the First Appeal filed by the

petitioner was dismissed on merits.

7. Being aggrieved by the order of the State Commission, petitioner has filed the present

revision petition.

8. We had summoned the record of the Consumer Forum and perused same as well as heard

the learned counsel for the petitioner.

9. As per grounds taken in the present revision petition, petitioner’s case is that it was in the

process of securing the completion certificate for entire 7 floors by obtaining the F.S.I.

clearance, but was stopped due to blanket stay granted by the High Court of Bombay. Thus, the

petitioner was precluded for handing over the possession of the flat to the respondent due to

legal inabilities and reasons beyond its control. As such, petitioner cannot be saddled with heavy

compensation for none of fault of it.

10. Consumer Forum, in its order held;

“14. The Opposite Party, in its written version of defence as well as in written notes of arguments, has taken stand that the reasons, which resulted into stalling further construction of the project or regularization of the project, were beyond the control of the Opposite Party. That is most selfish, mischievous and misleading statement. This is so because the Municipal Corporation of Greater Mumbai has taken an action on account of construction of second floor up to the seventh floor without there being approval & commencement certificate. The record of the case shows that the approval as well as commencement certificate was for ground + one floors only. Contrary to the same, the Opposite Party constructed a building consisting of ground + seven floors. Naturally, the construction beyond second floor being unauthorized, it invited stop work notice as well as demolition notice at the hands of the competent authorities. Now, the Opposite Party has audacity to make a statement to the effect that the factors leading to stop work notice and demolition notice were beyond its control. No person having reasonable prudence would believe this statement. The Opposite Party must have constructed second floor up to seventh floor upon accepting booking from the prospective flat purchasers and must have accepted booking amounts as well as part consideration from such prospective flat- purchasers. The Complainant’s flat, admeasuring 885 sq. ft., in built-up area, was valued at an amount in sum of Rs.10,62,000/-.Assuming that on each floor there are four flats, naturally the Opposite Party must have accepted bookings in respect of 28 flats i.e. flats beyond second floor up to seventh floor. If, the Opposite Party has accepted even an amount in sum of Rs.4,00,000/-,as a part-consideration from the prospective flat-purchasers, then in such a case, the Opposite Party must have earned or pocketed an amount more than in sum of Rs.1,00,00,000/-.Such a builder has shown an audacity to say that things were beyond its control and we are called upon to believe its statement. We, therefore, hold that by indulging into notorious act of going ahead with an unauthorized construction from second floor up to seventh floor, the Opposite Party has not only deceived competent authorities but also deceived the flat-purchasers who had invested their hard earned money in booking the flats in the ‘E’ Wing. This fraudulent act on the part of the Opposite Party has not only affected the administration of Municipal Corporation of Greater Mumbai, but innocent flat-purchasers like the Complainant herein.

15. The conduct on the part of the Opposite Party is further articulated from the fact that despite three notices served by the Complainant, followed by a legal notice, the Opposite Party had not shown any courtesy to give reply to any of the notices. Only after present complaint came to be filed before this Forum, the Opposite Party came out with a defence that because of certain actions taken by the competent authorities the project could not be completed and regularized. Thus, there is no substance in the stand taken

by the Opposite Party that factors beyond its control led to non-completion of project.

16. In the meantime, the Complainant paid an amount in sum of Rs.3,93,114/- (Rs.10,000/-+Rs.3,83,114/-)to the Opposite Party towards part-consideration against flat value in sum of Rs.10,62,000/-. The Complainant had paid an amount in sum of Rs.10,000/-before execution of the agreement and an amount in sum of Rs.3,83,114/- subsequent to execution of agreement. During the pendency of complaint, the Opposite Party deposited with this Forum, an amount in sum of Rs.3,93,114/- on 19/3/2008. Same amount has been invested under a Fixed Deposit Receipt on 24/4/2010 i.e. after lapse of about two years from the date of deposit. Now, that Fixed Deposit Receipt is yielding interest. However, here it may be noted that the Opposite Party deposited this amount with this Forum only on 19/3/2008 and utilized the same for about a period of four years.Therefore, the Opposite Party will have to pay interest @ 18% p.a.,on an amount in sum of Rs.3,93,114/-as from the date of agreement i.e. 8/10/2001 till deposit of this amount with this Forum on 19.3.2008.

17. Now, we turn to decide the question of award of reasonable compensation to the Complainant. The Complainant had booked a 2BHK flat, admeasuring 885 sq.ft.in built-up area. That was in the year 2001. The Complainant might be expecting possession of flat, say within a reasonable period of two years, which is a reasonable expectation of every flat-purchaser. It is revealed from the contents of the notices served by the Complainant to the Opposite Party that when the Complainant could not get possession of the flat, the Complainant had to shift to Nasik, since he could not get a place for stay at Mumbai to stay with his family. Had the project being completed within a reasonable period of two years, the Complainant would have received possession of his flat having built-up area admeasuring 885 sq. ft., say in or about the year 2003. The project is situated at Kandivali (West), Mumbai.If, a flat-purchaser now has to buy a flat at Kandivali (West),Mumbai; he has to shell out an amount around in sum of Rs.7,000/- to Rs.8,000/- per sq. ft., for booking a flat. Thus, if the Opposite Party had handed over possession of the flat to the Complainant within a reasonable period, the cost of the flat in question would have increased to an amount in sum of Rs.65,00,000/-to Rs.70,00,000/- as on today.Thus, against the fair investment in the flat in sum of Rs.10,00,000/-, the Complainant would have received the property, which would have valued, as on today, at an amount in sum of Rs.65,00,000/- to Rs.70,00,000/-.Thus, the loss caused by the Opposite Party to the Complainant, by this fraudulent conduct, is enormous and the Opposite Party has hit a middleclass person like the Complainant very badly.If, in future and on exhausting all the resources, at its command, if the Opposite Party in future gets regularized the project, the Opposite Party would dispose of the Complainant’s flat not at the agreed rate, which was then prevailing that was offered by the Complainant, but the Opposite Party would sell the flat at the prevailing market rates. In that event also, the Opposite Party would earn profit. Thus, in any case, the Opposite Party is going to be a winner and a poor consumer like the Complainant would be a permanent looser.

18. Having considered all these facts, we are inclined to accept the prayer made by the Complainant to direct the Opposite Party to pay to the Complainant, compensation equivalent to flat value of the Complainant’s flat i.e. an amount in sum of Rs.10,62,000/-. The view, which we have taken, gets support from the decision of the Hon’ble National Consumer Disputes Redressal Commission in Somnath Punju Nerkar Vs. Ramesh Hiralal Kadam III-(2008)-CPJ-59-(NC).In that case, the flat-purchaser therein had booked a flat admeasuring 600 sq. ft.,for total consideration of an amount in sum of Rs.4,20,000/- on 25.9.1996. Construction could not be completed and booked flat was not available to the flat- purchaser therein for a period of 11 years. In the meantime, the flat-purchaser had paid and

the builder had accepted an amount in sum of Rs.3,00,000/- towards the flat value. On possession not being delivered, the flat-purchaser therein filed a consumer complaint. The District Forum allowed the complaint partly, with a direction to the Opposite Party/Builder therein to hand-over possession of the flat, as mentioned in the agreement, on making payment of balance consideration amount by the flat-purchaser/Complainant therein. On an appeal, the State Commission modified the order of the lower Forum and directed to hand-over possession of the flat or in the alternative to pay compensation in sum of Rs.25,00,000/- in lieu of flat minus an amount in sum of Rs.1,20,000/-. Thus, flat value was ascertained at an amount in sum of Rs.25,00,000/-. Matter was carried to Hon’ble National Consumer Disputes Redressal Commission by the builder therein. Hon’ble National Commission considered the escalated price of the flat and in the circumstances awarded compensation in sum of Rs.20,80,000/- and while doing so, deducted the agreed flat value of an amount in sum of Rs.4,20,000/- from the artificial value of the flat in sum of Rs.25,00,000/-. Thus, present flat value appears to be the ratio for determining the amount of compensation to be awarded. By this reckoning, in the present case, award of compensation would go beyond an amount in sum of Rs.50,00,000/- because a 2BHK flat having built-up area admeasuring 885 sq. ft., would not be less than an amount in sum of Rs.50,00,000/-. But to our surprise, the Complainant has sought compensation in sum of Rs.10,62,000/-, which was the original price of the flat agreed between the parties.Since, the Complainant himself has restricted the amount of compensation to an amount in sum of Rs.10,62,000/-, we are not in a position to award compensation more than amount claimed”.

11. The State Commission, while dismissing the (Appeal No.1317 of 2010) filed by the

petitioner, at the admission stage itself observed;

“As far as appeal filed by the builder is concerned, we are finding that main relief which was required to be granted has not been granted by the District Consumer Disputes Redressal Forum and still builder/ developer has filed this appeal just to get concession in the ultimate relief granted in favour of the complainant. Forum has simply awarded refund of money and some compensation and cost. We are finding that there is no merit in the appeal preferred by the builder. Moreover in the course of arguments it has come to our notice that after passage of the order by the District Consumer Disputes Redressal Forum, builder has sold the said flat at `55 lakhs and he is simply required to pay a sum of `10 lakhs and some amount to the original complainant (flat purchaser). In the circumstances, this appeal is also devoid of any substance and, therefore, we are not inclined to admit the said appeal.Hence the order”.

12. It is not in dispute that an agreement for sale of the flat in question was executed between

the parties on 8.10.2011. However, for the reasons best known to the petitioner, it has

deliberately left the date of handing over of the possession of flat in question to the respondent,

as blank. This clearly shows that the date of handing over of possession to the respondent was

mischievously left blank.

13. Further, the malafide intentions of the Petitioner in misrepresenting the respondent about the

status of various so called sanctions obtained for the purpose of flat in question, are writ large

from day one. As noted above, agreement for sale was executed on 8.10.2001, but petitioner had

no permission under the Maharashtra Regional & Town Planning Act, 1966 (for short,

‘Maharashtra Planning Act’) to make any construction as apparent from the copy of notice issued

to the Petitioner under Section 53(i) of the Maharashtra Planning Act.(Placed at page no. 115 of

the Paper-Book)which read as under;

“MUNICIPAL CORPORATION OF GREATER MUMBAI NO.CE/16535/BP(WS)/AR of 23 SEP 2002

A P P E N D I X- 6

 

NOTICE UNDER SECTION-53 (1) OF THE

MAHARASHTRA REGIONAL AND TOWN PLANNING ACT, 1966

 

 

To,

Shri Shailesh Vora, Owner, 1st Floor ‘ A’

Wing. Dattani Gowers. Near Kora Kendra,

S. V. Road, Borivali (West), Mumbai-400 092.

 

Sir,

Whereas the undersigned has been appointed as officer by the Municipal Commssion under Section 152(1) of the Maharashtra Reginal & Town Planning Act,1966,(hereinafter for brevity’s sakereferred to as “the said Act”).

AND WHEREAS the undersigned has been empowered to exercise and perform the powers and functions of the Planning Authority under Section 53 of the said Act:-

AND WHEREAS it has been reported to me that you have commenced, undertaken or carried out development or instituted or changed the use of the land described in the Schedule appended below:

(i)         without the permission required under the Act,(ii)       which is not in accordance with the permission granted.

You are, therefore, hereby called upon to demolish the structure or the building on plot bearing C.T.S. No. 812, S.No.37, H.No.15 of village Kandivali, Kandivali (West) within one month, from the date of receipt of this notice by you.

Please note that on failure to comply with the aforesaid requisition, you will be liable for prosecution under the said Act and the aforesaid requisitions will be carried out at your risk and cost:.”

 

14. Thus, petitioner from day one, that is from the date of the execution of agreement, had

the malafide intention to grab the hard earned money of the respondent. Admittedly, petitioner

had been enjoying the money of the respondent for the last more than two years. Further, even

after getting two adverse finding from the Fora below, petitioner is in no mood to refund the

lawful money deposited by the respondent. Furthermore, a crucial fact observed by the State

Commission, is that builder has sold the said flat at `55 lakhs and he is simply required to pay a

sum of `10 lakhs and some amount to the original complainant (flat purchaser). These findings of

the State Commission speaks volume about the ulterior motive and malafide intentions on the

part of the petitioner.

15. It is also well settled that under Section 21 (b) of the Act, scope of revisional jurisdiction is

very limited and this Commission can interfere with the order of the State Commission where

such State Commission has exercised a jurisdiction not vested in it by law, or has failed to

exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with

material irregularity.

16. Hon’ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance

Co. Ltd. 2011 (3) Scale 654 has 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 than 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 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 findings of two Fora”.

17. It is also well-settled that every litigation has to come to an end ultimately. It is not that

every order passed by the judicial Fora is to be challenged even if the same are based on sound

reasonings. Here, both the fora below have given finding of facts that petitioner had acted in a

fraudulent manner in this case. We find no reason to disagree with findings of facts given by

both the Fora below;

18. In Ravinder Kaur Vs. Ashok Kumar, AIR 2004 SC 904, Apex Court observed ;

“Courts of law should be careful enough to see through such diabolical plans of the judgment debtor to deny the decree holders the fruits of the decree obtained by them. These type of errors on the part of the judicial forum only encourage frivolous and cantankerous litigations causing law’s delay and bringing bad name to the judicial system.”

19. It is well settled that no leniency should be shown to such type of litigants who in order

to cover up their own fault and negligence, goes on filing meritless petitions in different foras.

Time and again Courts have held that if any litigant approaches the Court of equity with unclean

hands, suppress the material facts, make false averments in the petition and tries to mislead and

hoodwink the judicial Forums, then the petition should be thrown away at the threshold. Equity

demands that such unscrupulous litigants whose only aim and object is to deprive the decree

holder the fruits of the decree must be dealt with heavy hands. Unscrupulous builder like

petitioner who after taking substantial cost of the building do not perform their part of obligation,

should not be spared. A strong message is required to be sent to such type of builders that this

Commission is not helpless in such type of matters. Therefore, it is a fit case where punitive

damages under Section 14 of the Act, should imposed upon the petitioner and same shall be paid

to the complainant.

20. But question which arise for consideration is as to what should be the quantum of the

damages which should be imposed upon the pertitioner for trying to drag the respondent upto

this Fora, when petitioner had no case at all.

21. Apex Court in Ramrameshwari Devi & Ors. Vs. Nirmala Devi & Ors. (Civil appeal Nos.4912-4913 of 2011 decided on 4.7.2011 has laid down the following guidelines while imposing costs;

“54.While imposing the costs we have to take into consideration pragmatic realities and be realistic what the defendants or the respondents had to actually incur in contesting the litigation before different courts. We have to also broadly take into consideration the prevalent fee structure of the lawyers and other miscellaneous expenses which have to be incurred towards drafting and filing of the counter affidavit, miscellaneous charges towards typing, photocopying, court fee etc. 55. The other factor which should not be forgotten while imposing costs is for how long the defendants or respondents were compelled to contest and defend the litigation in various courts. The appellant in the instant case have harassed the respondents to the hilt for four decades in a totally frivolous and dishonest litigation in various courts the appellants have also wasted judicial time of the various courts for the last 40 years. 

56. On consideration of totality of the facts and circumstances of this case, we do not find any infirmity in the well-reasoned impugned order/judgment. These appeals are consequently dismissed with costs, which we quantify as Rs.2,00,000/-We are imposing the costs not out of anguish but by following the fundamental principle that wrongdoers should not get benefit out of frivolous litigation”. 

22. Recently, Supreme Court in an appeal filed by Chennai Port Trust against an order of the

Madras High Court observed;

“For decades, courts across the country witness appeals on frivolous grounds, resulting in wastage of public money and consuming valuable time of the Courts. This happens because officers involved in these frivolous appeals are not personally responsible and don’t pay from their pockets”.

23. Now, recently, in Shivalik Vihar Sites Pvt. Ltd. & Ors. Vs. Darshan Singh, Special Leave

to Appeal (Civil) Nos. 33470 and 34016 of 2012 decided by Hon’ble Supreme Court on

10.12.2012, where the appeals preferred by Petitioners under Section 15 of the Act were

dismissed by the State Consumer Disputes Redressal Commission which agreed with the District

Forum that non delivery of the flats to the respondents amounting to deficiency in service. The

petitioner filed revision petitions before this Commission, which were dismissed with costs of

Rs.50,000/-(Rupees Fifty Thousand only) in each case. Order of this Commission was

challenged before the Apex Court. The Hon’ble Supreme Court observed;

“We are further of the view that the National Commission has been more than lenient because small amount of cost of Rs.50,000/- was imposed while dismissing the revision filed in the execution matterS”.

24. Hence, taking a clue from the above observations made in Shivalik Vihar Sites Pvt. Ltd.

& Ors.(supra), we dismiss the present revision petition with cost of Rs.50,000/-(Rupees Fifty

Thousand only.

25. Petitioner is directed to deposit the cost by way of demand draft in the name of ‘Consumer

Legal Aid Account’ of this Commission within six weeks. In case, it fails to deposit the cost

within the prescribed period, then it shall also be liable to pay interest @ 9% p.a., till realization.

26. Record of Fora below be sent back forthwith.

27. List on 31st January, 2014 for compliance

……..……………………J

(V.B. GUPTA) ( PRESIDING MEMBER)

………………………… (REKHA GUPTA) MEMBER

SSB