State Consumer Disputes Redressal Commission
Punaram Jaiswal vs M/S .Swapnil Builders & Developer on 2 November, 2017
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
Complaint Case No.CC/2017/43
Instituted on : 01.06.2017
Punaram Jayaswal S/o Late Dandiram Jayaswal,
Aged 55 years,
Resident of Quarter No.149/H., Risali Sector,
Bhilai, District Durg (C.G.) ... Complainant
Vs.
M/s Swapnil Builders and Developers,
Office at 12/2, Priyadarshini Parisar,
Nehru Nagar,
Bhilai, District Durg (C.G.) ... Opposite Party
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES:
Complainant, present in person.
Shri R.K. Bhawnani, Advocate for the O.P.
ORDER
Dated : 02/November/2017 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. The complainant has filed this consumer complaint under Section 12 of the Consumer Protection Act, 1986 (but the actually the complaint should be filed under Section 17 of the Consumer Protection Act, 1986) against the O.P. seeking following reliefs :-
(a) To direct the O.P. to provide a bungalow to the complainant or refund the consideration amount paid by the complainant with interest.
(b) To direct the O.P. to indemnify the complainant towards physical and mental harassment by paying Rs.5,00,000/-
(Rupees Five Lakhs only).
// 2 //
(c) Saddle the cost of litigation expenses amounting to Rs.25,000/- (Rupees Twenty Five Thousand only) as Lawyer's fees for instituting the instant complaint and approaching before this Commission.
(d) To grant any other relief, which this Commission may deem fit and just under the circumstances of the case and in the interest of justice.
2. Briefly stated the facts of the complaint of the complainant is that the complainant and the O.P. entered into Agreement dated 17.04.2012 for a bungalow No.01, 4 BHK situated at Rajmahal Nagar, Ruabandha ("Bungalow") for a consideration amount of Rs.23,00,000/- (Rupees Twenty Three Lakhs only) which is paid by the complainant to the O.P. vide cheque as mentioned in the agreement. The O.P. represented to do a registered Sale Deed for the Bungalow after the approval of the Project and in case if the agreement gets cancelled the O.P. agreed to refund the consideration amount of Rs.23,00,000/- (Rupees Twenty Three Lakhs only) to the complainant with interest. The O.P. represented to the complainant that the consideration amount of Rs.23,00,000/- (Rupees Twenty Three Lakhs only) paid for the Bungalow shall be inclusive of all costs with material required for construction as per approved drawing of the competent authority and in addition, the O.P. shall provide modular kitchen, LIC insurance of Rs.25,00,000/- for five years and dig bore in Bungalow for the complainant without any additional cost. The parties agreed that in case the O.P. is unable to handover the complete constructed // 3 // Bungalow to the complainant on or before 19.04.2013 then in such case till the handover of the Bungalow to the complainant, the O.P. shall pay Rs.10,000/- per month to the complainant. The O.P. failed to adhere to the agreed terms and conditions of the Agreement and has not handed over the complete constructed bungalow to the complainant till date. The O.P. cancelled the Agreement due to the reasons best known to them and made a settlement with the complainant on 19.07.2016 to refund Rs.33,00,000/- (Rupees Thirty Three Lakh only) in lieu of refund of the consideration amount of Rs.23,00,000/- (Rupees Twenty Three Lakhs only) with interest to the complainant with respect to the Bungalow and the O.P. transferred Rs.3,00,000/- (Rupees Three Lakhs only) as an initial interim refund amount through R.T.G.S. on 11.01.2016 and issued a cheque amounting to Rs.30,00,000/- (Rupees Thirty Lakhs only) having cheque No.58000 dated 30.11.2016 of Axis Bank. The cheque was duly presented by the complainant before UCO Bank, Civic Centre Branch, Bhilai in which the complainant has account, but it was dishonoured on 01.12.2016 and returned back to the complainant with a remark "Insufficient Funds." The complainant sent legal notice and reminder to the O.P. through his Advocate on 05.12.2016 and 12.01.2017 intimating about the dishonour of cheque and demanding Rs.30,00,000/- (Rupees Thirty Lakhs only) from the O.P. After receiving a legal notice and reminder sent through the advocate of complainant, the O.P. cam and met with the complainant and assured the complainant not to continue with the legal proceedings for the above mentioned and made a request to the complainant to wait for three months and the O.P. shall provide the // 4 // equivalent bungalow as agreed upon to the complainant in alternative location within three months. The complainant has not heard from the O.P. again ever since the assurance made by them as mentioned in para 11 and found gross deficiency in service of the .O.P. and seek a Bungalow as agreed by the O.P. together with Rs.5,00,000/- (Rupees Five Lakhs only) as compensation for physical and mental harassment and towards failure to rectify the deficiency in providing a Bungalow to the complainant and consequently towards the indifferent and insensitive behaviour of the O.P. Hence the complainant filed the instant complaint.
3. The O.P. filed its written statement and averred that the complaint filed by the complainant is not maintainable before this Commission. The complaint is of civil nature and it requires detail evidence which is not possible in summary procedure. Therefore, the complaint of the complainant deserves to be dismissed. The complaint filed by the complainant comes under the category of specific performance of the contract. Therefore, this Commission has no jurisdiction to entertain the complaint. The complaint filed by the complainant clearly comes under the category of money suit. From the perusal of the entire complaint, it is clear that the complaint is of recovery nature. The agreement which has been filed by the complainant is of 17.04.2012. The complainant has relied upon the said agreement, therefore, the complaint filed by the complainant is time barred under the Consumer Protection Act, 1986 and complaint deserves to be dismissed on this alone ground. The complainant is not a consumer under Consumer Protection Act, 1986. The complaint filed // 5 // by the complainant is time barred as the complainant himself mentioned in his complaint that the said agreement was executed on 17.04.2012. The price of the bungalow was made clear that it will be of Rs.23,00,000/-. The O.P. has not done any work which comes under the category of deficiency in service and unfair trade practice and the O.P. has not done any act due to which the complainant suffered mental harassment. This Commission has no jurisdiction to entertain the complaint. The complainant is not entitled for the reliefs which he has claimed. The complaint of the complainant may be dismissed.
4. The complainant has filed documents. Document Annexure 1 is Agreement dated 17.04.2012, and Receipt Voucher issued on different dates, Annexure 2 is Settlement dated 19.07.2016, Annexure 3 is cheque dated 30.11.2016, Annexure 4 is legal notice and reminder dated 05.12.2016 and 12.01.2017.
5. The O.P. has not filed any documents.
6. The complainant, who is present in person has argued that the complainant and the O.P. entered into Agreement dated 17.04.2012 for bungalow No.01, 4 BHK situated at Rajmahal Nagar, Ruabandha, Bhilai (C.G.). The price of the bungalow is fixed as Rs.23,00,000/- and the O.P. agreed to register the sale deed in respect of the bungalow in favour of the complainant after obtaining approval of the Project and in and in case if the agreement gets cancelled, the O.P. agreed to refund the consideration amount of Rs.23,00,000/- with interest. The complainant had already paid a sum of Rs.25,00,000/- to the O.P. as mentioned in the agreement dated 17.04.2012. The O.P. himself agreed // 6 // to dig bore in bungalow, which was included in the amount of Rs.25,00,000/-. The O.P. agreed that in case the O.P. is unable to deliver the complete constructed bungalow the complainant on or before 19.04.2013, then in such case he will pay a sum of Rs.10,000/- per month to the complainant till deliver of the possession of the bungalow, but the O.P. did not comply with the terms and conditions mentioned in the agreement. Even the O.P. did not refund the amount, which was deposited by the complainant with the O.P. The O.P. gave cheque No.58000 dated 30.11.2016 of Axis Bank for Rs.30,00,000/-, which was duly presented by the complainant before Uco Bank, Civic Centre Branch Bhilai, which was dishonoured due to insufficient fund and thereafter the O.P. did not refund the amount to the complainant, therefore, the complainant sent legal notice to the O.P., even then the O.P. did not refund the amount to the complainant and committed deficiency in service and unfair trade practice. Hence, the complainant has filed instant complaint before this Commission. The complainant is entitled to get the reliefs, as prayed by him in the prayer clause of the complaint.
7. Shri R.K. Bhawnani, learned counsel for the O.P. has argued that the nature of the complaint is of civil nature and it requires detail evidence, which is not possible in summary procedure. Looking to the agreement executed between the complainant and the O.P., and facts & circumstances of the case, it appears that the case comes within the category of specific performance of the contract, therefore, the Consumer Fora has no jurisdiction to decide the instant case. The case comes within category of money suit, therefore, only Civil Court is // 7 // competent to decide the matter. The complaint is liable to be dismissed. The O.P. did not commit any deficiency in service or unfair trade practice, therefore, the complaint is liable to be dismissed.
8. We have heard learned counsel appearing for both the parties and have perused the documents filed by the complainant in the instant case.
9. Learned counsel for the O.P. has raised objection that the nature of the complaint is of civil nature and it requires detail evidence, which is not possible in summary procedure. The above contention of the O.P. is not acceptable. Document Annexure 1 is copy of Agreement dated 17.04.2012, which was executed between the complainant and the O.P. in the said agreement, the O.P. admitted that he received a sum of Rs.23,00,000/- as consideration from the complainant and also agreed to provide Modular Kitchen and shall also Life insurance policy for the complainant for the five years for Rs.25,00,000/-. The said agreement was executed between the parties for the construction of the Bungalow No.01, 4 B.H.K. situated at Rajmahal Nagar, Ruabandha, Bhilai (C.G.) and regarding delivery of the possession of the above bungalow to the complainant.
10. In Shiv Kumar Agarwal Vs. Arun Tondon & Anr., II (2007) CPJ 321 (NC), Hon'ble National Commission has observed thus :-
"5. We heard the learned Counsel for the petitioner and perused the material on record. Like before the State Commission, the learned Counsel for the petitioner argued before us that this case involves complicated questions of fact and law and will need expert evidence, // 8 // which is not possible in the summary procedure adopted by the Consumer Fora. After seeing the complaint, written version as also the judgments of the Hon'ble Supreme Court in the case of Dr. J. J.
Merchant & Ors. v. Shrinath Chaturvedi, III (2002) CPJ 8 (SC) =(IV) (2002) SLT 714 = (2002) 6 SCC 635, and other catena of judgments, we are of the view that Consumer Forum, which is headed by Senior Judicial Officers, are capable of dealing with even complex questions. The Consumer Protection Act, 1986 under Section 13 provides for calling for expert evidence, if necessary."
11. Looking to the facts and circumstances of the case, it appears that the instant case does not required detailed evidence. The instant case can be decided by the documents filed by the parties only, therefore, this Commission has jurisdiction to decide the instant case. The complaint is maintainable before this Commission.
12. The second objection raised by the O.P. is that the dispute between the parties comes under the category of specific performance of the contract. The above contention of the O.P. is not acceptable.
13. In Ganeshlal Vs. Shyam, (2014) 14 SCC 773, Hon'ble Supreme Court has observed thus :-
"6. It is submitted that failure to hand over possession of the plot of land simpliciter cannot come within the jurisdiction of the District Consumer Forum, State Commission or National Commission. We quite see merit in this submission of Mr. Lambat, particular having seen the definition of "deficiency" as quoted above. We may, however, note that when it comes to "housing construction", the same has been specifically covered under the definition of "service" by an amendment inserted by the Act 50 of 1993 with effect from 18-6-1993.
// 9 // That being the position, as far as the housing construction by sale of flats by builders or societies is concerned, that would be on a different footing. On the other hand, where a sale of plot of land simpliciter is concerned, and if there is any complaint, the same would not be covered under the said Act."
14. In Brig. Davinder Singh Grewal & Anr. Vs. R.S. Real Estate & Anr., III (2017) CPJ 304 (NC), Hon'ble National Commission has observed thus :-
"7. In the instant case, it is manifestly clear that the agreement entered between the parties related to purchase of agricultural land, for which payment was made by the complainants to the OP sellers, and a registered agreement as well as sale-deed were also executed. The OPs were supposed to provide a pucca passage to the said land and to deliver the possession after 42 months of the agreement. It is clear that the said activity does not fall under any item in the definition of 'service' as per Section 2(o) of the Act. The State Commission have clearly stated that it could not be made out from the commitments made in the agreement that any 'service' was to be provided in respect of the land sold to the complainants by the opposite parties. Providing a passage to the said land cannot b held to be a service of the kind provided under the Act. It is evident, therefore, that the complainants do not fall under the definition of consumer as per Section 2(1)(d) of the Act. The citation given by the learned Counsel for the appellant in the case Pranav Mittal v. Dynamic Infradevelopers (P) Ltd. & Ors. and allied matters (supra), is not applicable to the facts of the present case, as the main issue in those cases was the non-provision of amenities in the constructed building, due to which, the premises could not be occupied by the complainants. In Yash Pal Marwaha v. Pushpa Builders Ltd. & Anr. (supra), the matter related to the delivery of possession of the flat and not of agricultural land. The order passed by the Hon'ble Supreme Court in Bunga Danial Babu v. M/s Sri Vasudeva Constructions & Ors. (supra), deals with agreement entered between the parties for the construction of a building and sharing of a certain number of flats. It was held by the Hon'ble Court that a land // 10 // owner who provided his land to a builder for the construction of a multi-storey building and as per the agreement was entitled to get a certain number of flats in the said building, falls under the definition of consumer. It is evident therefore, that the case law cited by the learned Counsel for the appellant deals with the activity of housing construction, and such activity falls within the definition of 'service' under Section 2(o) of the Act. However, the facts of the present case are entirely different because no such activity of housing construction is involved in the matter. It is evident, therefore, that despite affording an opportunity, the learned Counsel has not been able to produce any case law, depending on which, it could be stated that the facts of the present case indicate that the complainant comes under the definition of 'consumer'.
8. It is held , therefore, that the transaction between the parties, can be at best termed as "sale simpliciter," and it is not a case where any service had been hired by the complainants, as defined under Section 2(o) of the Act. We, therefore, find no illegality or jurisdictional error in the impugned order passed by the State Commission, which may justify any modification in the order passed by the State Commission. There is no merit in this appeal, therefore, and the same is ordered to be dismissed in limine with no order as to the costs."
15. In M. Vittal Rao Rep. By Lrs. Vs. Brindavan Builders Pvt. Ltd., IV (2017) CPJ 120 (NC), Hon'ble National Commission has observed thus :-
"7. During hearing before this Commission, the learned Counsel for the appellants stated that in view of the order passed by the Hon'ble Supreme Court in Sujit Kumar Banerjee v. M/s. Rameshwaran & Ors., III (2008) CPJ 62 (SC) = 2008 (10) SCALE 52, and an earlier order passed by the Hon'ble Apex Court in Faqir Chand Gulati v. Uppal Agencies Pvt. Ltd. and Another, III (2008) CPJ 48 (SC) = 2008 (10) SCC 345, the issue as to whether the appellants / complainants were consumers or not, was no more 'res integra'. It had // 11 // been amply made clear in these two judgments that the agreement between the parties was not a joint-venture agreement, but an agreement for construction of a residential building and to deliver agreed percentage of the constructed area to the land owners. The builders in these cases was, therefore, the service provider and the complainants were the consumers. The present appeal should therefore, be accepted and the developer should be asked to compensate them appropriately, as requested in consumer complaint.
12. In so far as the issue regarding the status of the complainants as 'consumer' is concerned, it has been made clear in the order passed by the Hon'ble Supreme Court in Faqir Chand Gulati v. Uppal Agencies Pvt. Ltd. (supra) and Sujit Kumar Banerjee v. M/s Rameshwaran & Ors. (supra), that the agreement between the parties in such cases was not a joint venture and the complainants were to be treated to be consumers of the opposite party, which was the service provider. This view has been reiterated by the Hon'ble Apex Court in their recent judgment passed in Bunga Danial Babu v. M/s Sri Vasudeva Constructions & Ors., VII (2016) SLT 135 = III (2016) CPJ 1 (SC), Civil Appeal No.944/2016, decided on 22.7.2016. It is held, therefore, that the complainants have the status of consumer under Section 2(1)(d)(ii) of the Consumer Protection Act, 1986 and the complaint filed before the consumer Fora is maintainable."
16. On the basis of above cited judgments, it appears that the O.P. is a builders, therefore, he is service providers and the complainant is consumer of the O.P. An agreement was executed between the parties for construction of the bungalow No.01, 4 BHK situated at Rajmahal Nagar, Ruabandha, Bhilai (C.G.) and delivery of possession of the said bungalow by the O.P. to the complainant, therefore, the instant case is not simplciter sale of bungalow and the matter is concerned with the construction of house, digging of bore and providing modular kitchen, therefore, the O.P. is service provider and the complainant comes // 12 // under the category of consumer under Section 2(1)(d) of the Consumer Protection Act, 1986., hence the complaint is maintainable before this Commission.
17. The O.P. raised another objection that the complaint is barred by time. The above contention of the O.P. is also not acceptable. The agreement was executed between the complainant and the O.P. on 17.04.2012. In the said agreement it is mentioned that if the possession of the Bungalow No.01, 4 BHK, Rajmahal Nagar, Ruabandha, Bhilai (C.G.) is not delivered by the O.P. to the complainant till 19.04.2013, then the O.P. will pay a sum of Rs.10,000/- per months towards rent. In the said agreement it is also mentioned that the O.P. will provide modular kitchen and will obtain life insurance policy for five years for Rs.25,00,000/- for the complainant and will also dig the bore.
18. In Navin Khanna (Dr.) & Ors. Vs. Unitech Reliable Projects Pvt. Ltd. & Anr. III (2016) CPJ 203 (NC), Hon'ble National Commission has observed thus :-
"(i) Consumer Protection Act, 1986 - Sections 24A, 21(a)(i) - Limitation - Continuous cause of action -
Unless or until the complainants gets possession of flats, they have got continuous cause of action.
19. In the instant case, the possession of the bungalow No.01, 4BHK, situated at Rajmahal Nagar, Ruabandha, Bhilai (C.G.), was not delivered by the O.P. to the complainant. The sale deed was not executed in favour of the complainant and even the possession of the said bungalow was not delivered by the O.P. to the complainant. Even the O.P. did not dig the bore and did not obtain life insurance policy // 13 // for the complainant, inspite of receiving amount from the complainant. Hence it appears that continuous cause of action accrued in favour of the complainant, therefore, the complaint is not barred by time .
20. The complainant pleaded that the complainant and the O.P. entered into an agreement dated 17.04.2012 for the Bungalow No.01, 4 BHK, situated at Rajmahal Nagar, Ruabandha, Bhilai (C.G.) for a consideration amount of Rs.23,00,000/-, which was paid by the complainant to the O.P. vide cheques. The complainant further pleaded that the amount of Rs.23,00,000/- was paid by the complainant in which all costs with material required for construction as per approved drawing of the competent authority and in addition the O.P. shall provide modular kitchen, life insurance policy of Rs.25,00,000/- for five years and dig bore in Bungalow for the complainant without any additional cost.
21. In the written statement the O.P. admitted that the price of the bungalow was made clear that it will be of Rs.23,00,000/-. The O.P. also admitted that the agreement was executed between the complainant and the O.P. The complainant filed copy of agreement dated 17.04.2012 (Annexure 1), in which it is specifically mentioned that :-
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22. It appears that the O.P. had received the amount of Rs.23,00,000/- from the complainant, but the O.P. did not construct the bungalow and did not deliver the possession of the said bungalow to the complainant, therefore, the complainant is entitled to get possession of the constructed Bungalow No.01, 4 BHK, situated at Rajmahal Nagar, Ruabandha, Bhilai (C.G.), as mentioned in the agreement. If the O.P. will not deliver the possession of the said bungalow to the complainant within stipulated period fixed by this Commission, then the complainant will be entitled to get refund of Rs.23,00,000/- along with interest @ 12% p.a. from 17.04.2012 i.e. the date of agreement, till realisation.
23. The complainant sought a sum of Rs.5,00,000/- towards physical and mental harassment from the O.P. In the instant case, the complainant has been already awarded interest @ 12% p.a. on Rs.23,00,000/- from 17.04.2012 till realisation, therefore, looking to the facts and circumstances of the case, it is just and proper to award a sum of Rs.1,50,000/- towards compensation for mental agony to the complainant and against the O.P. The complainant is also entitled to get a sum of Rs.10,000/- as cost of litigation from the O.P.
24. Therefore, the complaint filed by the complainant, is partly allowed and it is directed that :-
(i) The O.P. will provide Bungalow No.01, 4 BHK, situated at Rajmahal Nagar, Ruabandha, Bhilai (C.G.) according to the approved project and drawings, as mentioned in the agreement // 16 // dated 17.04.2012, to the complainant, within 6 months from the date of this order.
(ii) If the O.P. will not deliver the possession of the Bungalow No.01, 4 BHK, situated at Rajmahal Nagar, Ruabandha, Bhilai (C.G.) to the complainant within 6 months from the date of this order, then the O.P. will refund a sum of Rs.23,00,000/- (Rupees Twenty Three Lakhs) to the complainant, along with interest @ 12% p.a. from 17.04.2012 till realisation.
(iii) The O.P. will pay a sum of Rs.1,50,000/- (Rupees One Lakh Fifty Thousand) towards compensation for mental agony, to the complainant.
(iv) The O.P. will also pay a sum of Rs.10,000/- (Rupees Ten Thousand) towards cost of litigation, to the complainant.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta) President Member Member 02 /11/2017 02 /11/2017 02/11/2017