State Consumer Disputes Redressal Commission
1. M/S Omaxe Limited, vs Sandeep Luthra on 15 January, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 533 of 2013 Date of Institution : 11.12.2013 Date of Decision : 15/01/2014 1. M/s Omaxe Limited, SCO No.143-144, Sector-8C, Chandigarh, through its Authorized Representative. 2. M/s Omaxe Limited, Omaxe House 12, L.S.C., Kalkaji, New Delhi, through its Managing Director Through their authorized representative namely Sh. Harsh Bhargav, Manager (Legal), M/s Omaxe Limited, 7, Local Shopping Centre, Kalkaji, New Delhi. Appellants/Opposite Parties V e r s u s Sandeep Luthra son of Sh.K.C.Luthra, resident of House No.608, IAS Society, Sector 49-A, Chandigarh. ....Respondent/complainant Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER Argued by: Sh. Munish Gupta, Advocate for the appellants.
Sh. Surinder Thakur, Advocate Proxy for Sh. Sameer Sachdeva, Advocate for the respondent.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal is directed against the order dated 18.11.2013, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it accepted the complaint, filed by the complainant (now respondent) and directed the Opposite Parties (now appellants), as under:-
For the reasons recorded above, we find merit in the complaint and the same is allowed. OPs are directed :-
i) To deliver the peaceful possession of the plot No.65 in Group Housing Scheme under the name of Omaxe Parkwoods, Baddi-II situated at Baddi, District Solan, Himachal Pradesh, to the complainant.
ii) To pay interest @9% p.a. on the payments made by the complainant w.e.f. 24.8.2010 till the handing over of the possession of the plot to the complainant.
iii) To pay compensation to the tune of Rs.1 lac to the complainant for causing physical as well as mental harassment.
iv) To pay litigation costs to the extent of Rs.10,000/- to the complainant.
This order shall be complied with by the OPs within one month from the date of receipt of its certified copy, failing which, the amounts mentioned at S.No.(ii) to (iii) of the para aforesaid shall carry penal interest @12% p.a. from the date of filing of the present complaint, till its realization, besides costs of litigation, as mentioned above.
2. The facts, in brief, are that Mrs. Mamta Mittal, provisionally booked a residential plot, with the Opposite Parties, in a Group Housing Project, under the name and style Omaxe Parkwoods BaddiII, to be developed and constructed, on the land situated at Baddi, District Solan, Himachal Pradesh (H.P.). On 26.11.2007, according to the Time Linked Payment Plan, the provisional allottee/assignor Mrs.Mamta Mittal, made payment of first installment, to the tune of Rs.94,530/-, over and above the stipulated amount of 10% of the basic sale price, which was Rs.92,192/-. The Plot bearing No.65, having an approximate area of 137.6 sq. mtrs., was allotted, in the name of Mrs. Mamta Mittal, vide provisional allotment letter dated 25.02.2008, Annexure C-1. On 21.04.2008, all the rights and interests, whatsoever, pertaining to the said plot, including payments made in that regard, were endorsed/assigned, in favour of the complainant, vide endorsement form Annexure C-2. An agreement dated 24.11.2008 was executed between the parties. The total price of the plot was Rs.9,66,920/-. It was stated that 95% payment of the total price, by way of installments, as per the Time Linked Payment Plan, was made by the complainant, to the Opposite Parties, by 14.01.2009, at their Branch Office, at Chandigarh, vide various receipts Annexures C-3(I) to (VI) (colly.). It was further stated that, according to the said Agreement, the legal and physical possession of the said plot was to be delivered to the complainant, by the Opposite Parties, within 15 months, from the date of signing the same (Agreement), which period could be extended by another 6 months, as mentioned in Clause 25(a) of the same (Agreement). Thus, possession of the plot, in question, was to be delivered to the complainant, by 24.08.2010, including the extended period of six months.
3. The complainant served a legal notice dated 03.09.2012 Annexure C-4, upon the Opposite Parties, through registered post. Emails dated 13.04.2012 and 03.09.2012, were also sent, but to no avail. It was further stated that the Opposite Parties gave empty assurances, vide letters dated 16.03.2010 Annexure C-5 and 06.04.2010 Annexure C-6, wherein, it was mentioned that development of the said project was on the verge of completion. In the said letters, the Opposite Parties, demanded the balance 5% payment, from the complainant. It was further stated that before making the final payment, the complainant was assured that if the payment was made, the possession would be delivered soon. The final payment to the tune of Rs.1,03,480.70Ps, was made by the complainant, to the Opposite Parties, on 14.05.2010 vide receipt Annexure C-3 (VI). However, despite lapse of nearly 2 years and 8 months, possession of the said plot, was not handed over to the complainant. It was further stated that till date, more than five years have elapsed, from the date of execution of the Agreement aforesaid, but the Opposite Parties failed to comply with their part. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence 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 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to deliver the legal physical possession of the plot, in question; pay interest @18% p.a. on the amount paid by him, towards the said plot, w.e.f. 24.08.2010, till handing over of legal and physical possession of the same; compensation, to the tune of Rs.5 lacs, for mental agony and physical harassment; and cost of litigation, to the tune of Rs.45,000/-.
4. The Opposite Parties, in their joint written version, pleaded that the District Forum had no territorial jurisdiction to entertain the complaint, as no cause of action arose to the complainant, with the territorial Jurisdiction of Chandigarh. It was further pleaded that the complainant did not fall within the definition of a consumer, as he being an investor, had purchased the said plot, from the original allottee Mrs.Mamta Mittal, with a view to earn huge profits. It was further pleaded that since the relief sought by the complainant was more than Rs.20 lacs, as such, the District Forum had no pecuniary Jurisdiction, to entertain and decide the complaint. It was admitted that all the rights and interest therein were transferred and endorsed, in favour of the complainant. The payments made towards the said plot, were also admitted. Execution of the Agreement, between the parties, was also admitted. It was stated that possession of the plot, was offered to the complainant, vide letters dated 16.03.2010 and 06.04.2010 Annexure C-5 and C-6, but despite sending the same and calling upon him, to execute the Maintenance Agreement, with the Maintenance Agency, he did not come forward for the same. It was further stated that the legal notice, stated to have been served upon the Opposite Parties, was a forged and fabricated one. It was further stated that, it was the complainant, who was at fault, as he did not come forward to complete the necessary formalities. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
5. In the rejoinder, filed by the complainant, he reasserted all the averments, contained in the complaint, and repudiated those, contained in the written version of the Opposite Parties.
6. The Parties led evidence, in support of their case.
7. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order.
8. Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties.
9. We have heard the Counsel for the parties, and, have gone through the evidence, and record of the case, carefully.
10. The Counsel for the appellants, submitted that a specific objection was taken, in the written version, that the District Forum had no territorial Jurisdiction, to entertain and decide the complaint, as no cause of action accrued to the complainant, at Chandigarh, yet, it did not consider the same, in a proper manner, resulting into miscarriage of justice. He further submitted that the plot was allotted, in favour of Mrs.Mamta Mittal, and, later on, it was transferred, in favour of the complainant. He further submitted that the Opposite Parties sent letters to the complainant, offering possession and for execution of maintenance Agreement, but he did not come present. He further submitted that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice.
11. On the other hand, the Counsel for the respondent/complainant, submitted that the payments, towards the said plot, were made at the Branch Office of the Opposite Parties, at Chandigarh, and, as such, a part of cause of action, arose to the complainant, at Chandigarh. He further submitted that the District Forum, therefore, had territorial Jurisdiction, to entertain and decide the complaint. He further submitted that no legal physical possession of the plot, in question, was offered to the complainant. He further submitted that the Opposite Parties were, thus, deficient, in rendering service, as also indulged into unfair trade practice.
12. The principal question, that arises, for consideration, is, as to whether, the District Forum had got the territorial Jurisdiction, to entertain and decide the complaint, or not. Admittedly, the project, in the name and style of Omaxe Parkwoods, BaddiII, in which the plot, in question, was originally allotted to Mrs.Mamta Mittal, is situated at Baddi, District Solan, Himachal Pradesh (H.P.). There is also, no dispute, with regard to the factum that later on, the said plot, was transferred in the name of the complainant, as he purchased the same, from Mrs.Mamta Mittal. The rights and interests, in the plot were transferred, in the name of the complainant, at Delhi, as is evident, from Annexure C-2, copy of the endorsement form, which bears the photo-impression of the stamp of Omaxe Ltd., New Delhi. No doubt, according to the complainant, payments towards the price of the said plot, were made at the Branch Office of the Opposite Parties, at Chandigarh. However, no document was produced, on the record, showing that these payments were made at Chandigarh. Receipt Annexure C-3 (I) dated 26.11.2007, vide which, a sum of Rs.94,530/-, towards part price of the plot, was deposited through cheque with Omaxe Limited, and issued by an authorized signatory, bears the address of the Opposite Parties, as Omaxe House, 7, Local Shopping Centre, Kaklaji, New Delhi-110019. Copy of the receipt Annexure C-3(II) letter regarding intimation of due installment, also does not show that it was issued at Chandigarh. Another receipt dated 12.05.2008, copy whereof is at page 20 of the District Forum file shows that two cheques dated 12.05.2008, in the sum of Rs.1,60,000/- and Rs.22,000/- respectively, were issued, to the Opposite Parties. No doubt, these cheques were drawn on the ICICI Bank, Chandigarh, yet, it is evident, from copy of the said receipt, that the address of the Opposite Parties written thereon was Omaxe House, 7, Local Shopping Centre, Kaklaji, New Delhi-110019. It is signed by an authorized signatory of the Opposite Parties. There is nothing, in this receipt, to show that it was issued at Chandigarh. Similarly, the receipts, copies whereof, are at pages 22, 24, 25 and 26 of the District Forum file, vide which, various payments towards price of the plot were made by the complainant, do not show that these were issued at Chandigarh, or the amount was received by any of the authorized signatory of the Opposite Parties, at Chandigarh. These receipts bear the address of Omaxe House, 7, Local Shopping Centre, Kaklaji, New Delhi-110019. Similar is the case, in respect of the receipt, copy whereof is at page 28 of the District Forum file. It was for the complainant, to prove that he actually made payments, at the Branch Office of the Opposite Parties, at Chandigarh, and the receipts were issued to him, by an authorized signatory, of the Branch office, at Chandigarh. Since, the complainant failed to prove this factum, that any cause of action accrued to him, within the territorial Jurisdiction of Chandigarh, in our considered opinion, the District Forum, at Chandigarh, had no territorial Jurisdiction, to entertain and decide the complaint. While interpreting the provisions of Section 17(2)(b) of the Act, which are para-materia to Section 11 of the Act, in Sonic Surgical Vs National Insurance Company Ltd. IV(2009) CPJ 40(SC), the Apex Court held as under ;
4. In our opinion, no part of the cause of action arose at Chandigarh. It is well settled that the expression cause of action means that bundle of facts which gives rise to a right or liability. In the present case admittedly the fire broke out in the godown of the appellant at Ambala. The insurance policy was also taken at Ambala and the claim for compensation was also made at Ambala. Thus no part of the cause of action arose in Chandigarh.
XXX XXX XXX 8. Moreover,
even if it had application, in our opinion, that will not help the case of the appellant. Learned Counsel for the appellant submitted that the respondent-Insurance Company has a branch office at Chandigarh and hence under the amended Section 17(2) the complaint could have been filed in Chandigarh. We regret, we cannot agree with the learned Counsel for the appellant. In our opinion, an interpretation has to be given to the amended Section 17(2)(b) of the Act, which does not lead to an absurd consequence. If the contention of the learned Counsel for the appellant is accepted, it will mean that even if a cause of action has arisen in Ambala, then too the complainant can file a claim petition even in Tamil Nadu or Gauhati or anywhere in India where a branch office of the Insurance Company is situated. We cannot agree with this contention. It will lead to absurd consequences and lead to bench-hunting. In our opinion, the expression branch office in the amended Section 17(2) would mean the branch office where the cause of action has arisen. No doubt this would be departing from the plain and literal words of Section 17(2)(b) of the Act but such departure is sometimes necessary (as it is in this case) to avoid absurdity [vide G.P Singhs Principles of Statutory Interpretation, Ninth Edition, 2004 P. 79].
13. The perusal of the facts of Sonic Surgicals case (supra), clearly goes to reveal that the Policy was taken by the complainant at Ambala; the godown, in respect of which, the Policy was taken, was situated at Ambala, whereas the complaint was filed before this Commission, at Chandigarh. Under these circumstances, it was held that since no cause of action arose, within the territorial Jurisdiction of this Commission, at Chandigarh, except that the Opposite Party had the Branch Office there, it had no territorial Jurisdiction, to entertain and decide the complaint. In Sonic Surgicals case (supra), before the Honble Supreme Court, an argument was advanced by the Counsel for the appellant/complainant, that since the Branch Office of the Insurance Company, was situated at Chandigarh, even if, no other cause of action, arose to the complainant, within the territorial Jurisdiction of Chandigarh, the State Consumer Disputes Redressal Commission, at Chandigarh, had Jurisdiction to entertain and decide the complaint. That argument of the Counsel for the appellant/complainant therein, was rejected by the Honble Supreme Court, in the manner, referred to above. The principle of law, laid down, in the aforesaid case, is fully applicable to the instant case. The findings of the District Forum to the effect that it had territorial Jurisdiction, to entertain and decide the complaint, therefore, being perverse, are reversed.
14. For the reasons recorded above, the appeal is accepted, with no order as to costs. The order of the District Forum is set aside.
15. The complaint, in original, is ordered to be returned to the respondent/complainant, alongwith the documents attached therewith, after retaining the attested to be true photocopies of the same, with a liberty, to file the same, before the appropriate District Consumer Disputes Redressal Forum, having territorial Jurisdiction, to entertain and decide it (complaint).
16. Certified copies of this order, be sent to the parties, free of charge.
17. The appeal file, be consigned to Record Room, after completion.
Pronounced.
January 15, 2014 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Sd/-
(PADMA PANDEY) MEMBER Rg