State Consumer Disputes Redressal Commission
The Pinnacle Corp. Self Supporting vs Sunita Gupta on 21 September, 2018
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.70 of 2016
Date of Institution : 22.01.2016
Order Reserved on: 13.09.2018
Date of Decision : 21.09.2018
The Pinnacle Co-operative Self Supporting Welfare House Building
Society Ltd. Regd. Office D-178, IFP, Phase-8, Mohali through its
Secretary.
IInd Address:
The Pinnacle Co-operative Self Supporting Welfare House Building
Society Ltd., Group Housing No.3, Peari City, Sector-104, SAS
Nagar, Mohali
.....Appellant/opposite party
Versus
Sunita Gupta W/o Sh. Kulbhushan Gupta, aged 51 years R/o
H.No.649, Sector-4, Panchkula, Haryana.
.....Respondent/complainant
First Appeal against order dated
26.08.2015 passed by the District
Consumer Disputes Redressal Forum,
S.A.S. Nagar (Mohali).
Quorum:-
Shri J. S. Klar, Presiding Judicial Member
Smt. Kiran Sibal, Member Present:-
For the appellant : Sh. Mukand Gupta, Advocate For the respondent : Sh. Munish Goel, Advocate ............................................ J.S. KLAR, PRESIDING JUDICIAL MEMBER :-
Challenge in this appeal by appellant is to order dated 26.08.2015 of District Consumer Disputes Redressal Forum S.A.S. Nagar (Mohali) (in short the 'District Forum'), accepting the complaint of respondent of this appeal by directing appellant to pay a sum of Rs.9,25,000/- alongwith interest @12% p.a. from the date of receipt of respective sums till the date of payment; further to pay First Appeal No.70 of 2016 2 Rs.50,000/- on account of harassment and unfair trade activities committed on the part of OP and to pay Rs.10,000/- as litigation expenses. The appellant of this appeal is opposite party (OP) in the complaint before the District Forum and respondent of this appeal is complainant therein and they be referred as such hereinafter for the sake of convenience.
2. The complainant filed the complaint u/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the Pinnacle Co-Operative Self Supporting Welfare House Building Society Ltd. on the averments that, she became the member of the Society on 17.08.2011, vide membership no.34 and OP issued the membership card/share certificate to her. The OP issued a brochure, vide which, the OP invited the application for sale and allotment of 3 BHK flat with a tentative super area of 1700 square feet per unit with a tentative price of Rs.33,90,000/- and tentative completion time of the construction of the flat was 30 months. The complainant applied for purchase of 3 BHK flat by paying Rs.9,25,000/- from 17.08.2011 to 18.05.2012 in three installment i.e. Rs.3,25,000/- on 17.08.2011, 3,00,000/- on 24.09.2011 and 3,00,000/- on 18.05.2012 against membership no.34, as allotted to her. The complainant made the payment in July 2011 and the tentative completion time provided by OP was 30 months. The project has not yet started till date by OP. The complainant sent letter dated 11.06.2014 to OP demanding refund of the payment on the ground that no development work has been started on the spot despite passage of more than tentative First Appeal No.70 of 2016 3 time, as set out in the application form. OP replied to letter dated 11.06.2014 vide its reply dated 27.06.2014 admitting that they did not have the clearance to start the construction of the site and found no merit in the application of complainant for refund of the amount. Thereafter, the complainant sent reminder demanding refund of the deposited amounts to OP, but to no effect. The complainant sent final reminder letter on 12.11.2014 demanding the refund of deposited amount, but OP did not reply to any of the reminders. The OP assured the complainant that house building would be completed within tentative time of 30 months. The complainant alleged deficiency in service on the part of OP. The complainant prayed that OP be directed to refund the deposited amount of Rs.9,25,000/- with interest @18% per annum till actual payment and to pay compensation of Rs.50,000/- for mental harassment and Rs.10,000/- as cost of litigation.
3. Upon notice, OP appeared and filed written reply to the complaint by raising preliminary objections that in the application, the tentative cost and tentative completion time of the project was mentioned and the said term was duly accepted by the complainant. The amount of Rs.3,25,000/- deposited with the application form was on account of application fee, share and registration money and therefore the notice was issued to her to deposit another sum of Rs.3,00,000/- on or before 15.09.2011, but the complainant failed to deposit the said amount. OP issued a reminder and complainant complied with the demand and deposited Rs.3,00,000/- on First Appeal No.70 of 2016 4 24.09.2011 against due receipt No.145. All the necessary approvals have been obtained by OP for above project after following the due process of law from the concerned quarter and the last approval being from Punjab Pollution Control Board on 14.08.2014. It was denied that there was deficiency in service on the part of the OP, as the construction of the flat was to start after taking the appropriate approvals from the concerned quarter and there was no certain time frame committed in completion of the project and handing over the project as alleged by the complainant i.e. 30 months from the date of registration thereof. The complainant is not a consumer, as defined under the provisions of the Consumer Protection Act. The complaint was contested by OP even on merits. It was further averred that the complainant requested for refund of deposited amount, which could not be refunded, as the same has been utilized for the land purchased by the society towards the part of total sale consideration paid to the vendors of the land. Therefore, refund has not been made to the complainant. The construction of the flats was to take place when building plans were being approved by the competent authority. The building plans were conceptualized after engaging the services of the Architect namely Mr. Krishan Lal Dham, Sector 34 Chandigarh and thereafter the building plan was submitted with the office/concerned authorities and said authority sanctioned the building plan vide, letter dated 17.10.2013. Since the housing project involves the construction of multistoried building as visualised by the said Architect and hence as per applicable building by laws, First Appeal No.70 of 2016 5 permission from the Ministry of Defense, Govt. of India was required to be obtained. Accordingly, the same had been applied which had been subsequently granted by the Ministry of Defence, Government of India vide letter 6th/9th September, 2013. The consent to establish under water and Air were required to be obtained from Punjab Pollution Control Board, which had been granted by the office of Punjab Pollution Control Board, Mohali, vide letter dated 14.08.2014. The construction over the site of the housing project to be constructed by OP in more than 20,000 square meters, as per the norms laid down by the Ministry of Environment, Government of India and the said project was required to obtain environment clearance. The same was applied which had been approved by SEIAA committee and now the same is under consideration of the higher authority namely SEIAA, set up by Ministry of Environment, Govt. of India having its office in the office of Punjab Pollution Control Board, Patiala. The construction over the site could not be started by the appellant and in case the construction is to be started by OP in the absence of environment clearance, the same would attract prosecution. The complainant concealed the fact of status and progress of the project. Any deficiency in service was denied by OP. The members of the society as a whole constitute society and are not separate from the society. The refund of the amount is not warranted to the complainant in this case. The OP prayed for dismissal of the complaint.
First Appeal No.70 of 2016 6
4. The complainant tendered in evidence her affidavit Ex.CW-1/1 alongwith copies of documents Ex.C-1 to C-20 and closed the evidence. As against it, OP tendered in evidence affidavit of Nikhil Saraf, Secretary Ex.OP-1/1 alongwith copies of documents Ex.OP-1 to OP-1/12 and closed the evidence. On conclusion of evidence and arguments, the District Forum accepted the complaint of complainant as referred to above. Aggrieved by above order, OP now appellant has directed this appeal against the same.
5. We have heard the learned counsel for the parties and have also examined the record of the case. First contention raised by counsel for appellant before this Commission is that the District Forum lacked pecuniary jurisdiction to try the complaint and order passed by the District Forum is erroneous. On the other hand, counsel for respondent of this appeal contended that appellant being OP in the complaint has not raised any specific objection of lack of pecuniary jurisdiction of District Forum in the written reply and as such the appellant has waived this objection of above jurisdictional point thereby. We have gone through the written reply filed by appellant before the District Forum, but find that no specific objection has been taken by the appellant as OP with regard to lack of pecuniary jurisdiction of the Forum by the OP. Since, specific objection has not been taken by the OP in the written reply with regard to lack of pecuniary jurisdiction of the District Forum and as such, as per submission of counsel for complainant, OP is estopped from challenging it subsequently. Even in the memorandum of First Appeal No.70 of 2016 7 appeal, OP now appellant has not raised this specific objection for want of pecuniary jurisdiction of District Forum and as such in the absence of any specific plea of OP now appellant to this effect, now it cannot be raised without any specific objection in this regard. We find support from law laid down by the National Commission in "GTM Builder & Promoters Private Limited Vs. Anuja Goyal"
2015(2)CPR-413, wherein it has been held objection pertaining to pecuniary jurisdiction must be taken at earliest opportunity and it cannot be allowed to be taken at subsequent stage. By no stretch of imagination, it can be said that OP challenged pecuniary jurisdiction of the District Forum. The objection of OP at appellate level for want of pecuniary jurisdiction of the District Forum without specific objection in the written reply and without any ground in memorandum of appeal to this effect, cannot be allowed to be entertained at this stage. The OP referred to law laid down by this Commission in "PACL Limited & another Vs. Dr. Munish Goel & others" in FA No.78 of 2015, decided on 12.06.2017. We find that Civil Court was already seized off the matter in the cited authority and even otherwise, the point of lack of pecuniary jurisdiction was pressed in the cited authority from the initial stage and hence this judgment is not applicable in this case. We find support from law laid down by the Apex Court in "Harshad Chiman Lal Modi Vs. DLF Universal Limited & another" 2005(7) SCC-791, wherein it has been held that Section 21(2) Code of Civil Procedure deals with objection to jurisdiction and it provides that no objection as to First Appeal No.70 of 2016 8 competence of a court with reference to the pecuniary limits of its jurisdiction shall be allowed by the appellate or revisional court unless there has been a consequent failure of justice. In view of laid down by the Apex Court in the above referred authority and the National Commission in "GTM Builder & Promoter's case (Supra), the submission of counsel for appellant is to the contrary holds no force. Consequently, it is held that OP now appellant has impliedly waived the point of lack of pecuniary jurisdiction of the District Forum by not raising specific plea to this effect in the written reply as well as in the memorandum of appeal.
6. The next point for adjudication before us is whether complainant is consumer of OP or not. Admittedly, OP is a Cooperative Society governed under Punjab Societies Act. The counsel for OP now appellant contended that the complainant is not consumer being member of the OP society and this is the dispute among members or committee of society in respect of matter relating to affairs of society and member of society may proceed in arbitration. The counsel for appellant referred to law laid down in "Andhra Bank & others Vs. Akhil Bhartiya Brahamina Karivena Nitya Annadana Satram" 2017(2) CPR-246 wherein it has been held by the National Commission that the dispute between a member and a society pertain to the affairs of society and a member can file an application under Arbitration and Conciliation Act only. On the strength of this judgment, the contention of OP now appellant is that complainant is not consumer. Similarly, reference was made to First Appeal No.70 of 2016 9 law laid down by the National Commission in "Azure Tree Township Lip Vs. Srishti Building no.343 Co-operative Housing Society" 2017(3)CLT-309 wherein complaint by Cooperative Society was held to be not a consumer dispute, as he has no direct evidence to that effect. The counsel for appellant also relied upon law laid down by the National Commission in "K.D.Kothiyal Vs. Phool Kaul & others" 2015(2)CPJ-207 to the effect that the State Commission was not a proper Forum for deciding complaint in summary nature against society and complaint was not held maintainable. Reference was also made to law laid down by the National Commission in "Dilip Bapat & another Vs. Panchavati Cooperative Housing Society Limited" 1993(1)CPJ-68 to the effect that the right Forum to agitate the grievance is the Cooperative Court and not consumer dispute redressal agency. On the strength of law laid down in above authorities, the submission of counsel for OP now appellant is that complainant is not consumer of OP. On the other hand, the counsel for complainant, now respondent, relied upon law laid down by the Apex Court in "Virender Jain Vs. Alaknanda Cooperative Group Housing Society Limited and others" 2013(9)SCC-383, wherein it has been held that the appellants who had deposited the installment of price for the flats being constructed by respondent no.1 Cooperative Society are covered by the definition of consumer contained in Section 2(1)(d) of the Consumer Protection Act, 1986. When there is a conflict between law laid down by the National Commission and the Apex First Appeal No.70 of 2016 10 Court, the law laid down by the Apex Court has the overriding effect under Article 141 of Constitution of India. All the Tribunals and Courts in India are bound by the law laid down by the Apex Court. In the presence of law laid down by the Apex Court in above case, the counsel for OP cannot derive any benefit from contrary law laid down by the National Commission in this regard from the cited authorities. While relying upon the law laid down by the Top Court in Virender Jain's case (supra), the complainant is held to be the consumer of OP/Cooperative Society.
7. Now, we touch the point of deficiency in service by OP in this case. Pleadings of the parties and evidence led on record by them has been carefully examined by us. The complainant tendered in evidence her affidavit Ex.CW-1/1 and testified that she deposited Rs.9,25,000/- with OP towards installments against her membership no.34 out of total sale consideration of Rs.33,90,000/-. The tentative completion time of the project was 30 months. She further stated that work of project has not even started till date by OP. She demanded the refund of the amount on account of non-development of construction work by OP thereat. Ex.C-1 is the copy of receipt for payment of Rs.510/- dated 17.08.2011 deposited by complainant with OP and OP issued enrollment as member of the society to complainant, vide Ex.C-2 dated 17.08.2011. Ex.C-3 is the copy of brochure of above project of OP. It is evident from perusal of this brochure that OP held out the layout plan of surrounding area of Sector 104 Mohali. The OP agreed to provide the facilities like club First Appeal No.70 of 2016 11 house, jogging park, drivers/guest servant lounge, planned green area, parking space, 24 hrs electricity and water supply, appropriate open area, lifts, 24 hrs security and property management in allottee absence. The above referred facilities were agreed to be provided by OP to complainant and tentative completion time of the above project was 30 months, as given in the expression of interest. The complainant deposited the amount of Rs.3,25,000/- vide Ex.C-4 with OP on 17.08.2011. The OP acknowledged another installment of Rs.3,00,000/- from complainant vide Ex.C-5 dated 26.09.2011 and receipt is Ex.C-6. Vide Ex.C-7, OP acknowledged the installment of Rs.3,00,000/- dated 19.05.2012 and copy of receipt is Ex.C-8. The complainant sought refund of the deposited amount vide Ex.C-9 dated 11.06.2014 and Ex.C-10 and C-11 are the copies of postal receipts thereof. Ex.C-12 is the reply sent by OP to complainant. The complainant further issued reminders in this regard to OP vide Ex.C-13 to C-20 supported by copies of postal receipts Ex.C-21 to C-24. The OP relied upon affidavit of Nikhil Safar, Secretary of OP Ex.OP-1/1. It is clear that OP applied for the approval from Ministry of Defense, Govt. of India on 6/9 September, 2013. The clearance of Punjab Pollution Control Board was required to be obtained by OP, which was granted only on 14.08.2014. It was a construction linked plan as is evident from letter dated 07.05.2012 Ex.OP-4. The payment was to be made as per the above plan. The OP held no approvals from the authorities and received the amounts from complainant without holding the requisite approvals from the First Appeal No.70 of 2016 12 competent authority. It is against the spirit of PAPRA Act, 1995. Since, OP received money from complainant without holding proper approvals and sanctions in its favour and as such it has failed to provide the efficient service to the complainant. A reference to documents Ex.OP-7 and Ex.OP-12 proves in this case that sanctions have been obtained by OP subsequently after receiving membership and first installment money from complainant on 17.08.2011. The National Commission has held in "Kamal Sood Vs. DLF Universal Limited" 2007(2) CLT-440 that a builder/developer cannot collect money without holding proper and necessary sanctions. Since, OP was not holding proper sanctions and approvals for construction of the flats from the competent authority and as such the receipt of money by OP from complainant violated the spirit of PAPRA Act, 1995. The contention of counsel for OP that complainant paid the installments for land only and have not paid any installment for construction project is no ground to hold that it s pure case of sale and purchase of immovable property. The OP undertook to provide the facilities by raising construction and as such the relationship of consumer and service provider comes into being in this case. The Apex Court has also held in "Luknow Development Authority Vs. M.K. Gupta" 2014 (1) SCC-243 that if the authority undertakes to construct building or allot house or building site to citizen of State either as amenity or as benefit, then it amounts to rendering of service and will be covered in the expression service made available to the potential user. The complainant deposited the installment for First Appeal No.70 of 2016 13 price for the flat being construction by OP and are covered by the definition of Consumer under Section 2(1)(d) of the Act. The National Commission has also held in "Emerging India Housing Corporation Limited Vs. Avtar Kaur Bains" 2017(2)CPR-379 that plot not fully developed as per time schedule. Complaint was under
no obligation to take its possession, which is now sought to be offered. This State Commission held in C.C. No.258 of 2017, titled as "Ishwar Dayal Aggarwal Vs. M/s Omaxe Chandigarh & another" decided on 05.02.2018, wherein it has been held that OP is under contractual obligation to develop the project proportionately with the amounts received by it from the consumers, but OP has not raised any development on the spot. The counsel for OP relied upon law laid down in "Andhra Pradesh Rajiv Swagruha Corporation Limited & another Vs. Seela Krishna Rao & others" 2015(III)CPJ- 555(NC). We find that this authority deals with some other proposition of matter, which is not identical with the case in hand.
8. As a result of our above discussion, we find no merit in the appeal and same is hereby dismissed by affirming the order of the District Forum Mohali dated 26.08.2015.
9. The appellants had deposited the amount of Rs.25,000/- at the time of filing the appeal. This amount with interest, which accrued thereupon, if any, be remitted by the Registry to respondent of this appeal by way of crossed cheque/demand draft after the expiry of 45 days subject to stay order, if any.
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10. Arguments in this appeal were heard on 13.09.2018 and the order was reserved. Certified copies of the order be communicated to the parties as per rules.
11. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (KIRAN SIBAL) MEMBER September 21, 2018 MM