State Consumer Disputes Redressal Commission
Vinita Mendiratta & Anr. vs Ats Real Estate Builders Pvt. Ltd. on 16 May, 2024
VINITA MENDIRATTA & ANR. V. ATS REAL ESTATE
BUILDERS PVT. LTD.
16.05.2024
Present: Mr. Deepak Mendirata, Husband of Complainant No. 1.
Mr. Deepak Mendirata, Complainant No 2 in person.
Mr. Mohd. Irshad, Proxy Counsel for Mr. Kapil Kher, Counsel
for the OP.
IA No.449/2024 IN C-304/2020
By this order we shall dispose Application bearing IA No.449/2024
filed by the Complainants seeking amendment of complaint under Order
VI Rule 17 read with Section 151 of the Code of Civil Procedure 1908
read with Section 38(9) of the Consumer Protection Act 2019 stating
therein that certain additional and new facts and circumstances have
arisen in the complaint, and hence for proper, just, complete and effective
adjudication of the present case, it is the duty of the Complainant to bring
all the new developments, the fresh facts and circumstances in the present
complaint, before this Hon'ble Commission for making its decision in the
present case, after considering and appreciating all the issues facts and
aspects of the present case. The Complainant has sought amendment by
adding Para No.9A, 9B, 11A, 26A, 26B, 26C, 26D, 26E, 26F, 26G. The
amendments sought are detailed in the application from Point No I to XII
and the same are not repeated herein.
Further, apart from above, the Complainant also wants to add
interim prayer and amend the prayer clause of the complaint, which reads
as under:
a) That the Respondent be directed to handover the possession
of the said unit, after adjustment of accounts between the parties and after due inspection of the premises to ensure Page 1 of 5 VINITA MENDIRATTA & ANR. V. ATS REAL ESTATE BUILDERS PVT. LTD.
that the unit is as per the high-quality standards enumerated in Schedule II: Specification of the Apartment, of the Apartment Buyer Agreement.
b) That the Respondent be directed to charge maintenance deposit charges, power back up charges, after handing over of the physical possession of the unit to the complainant and waive off any holding charges, delayed charges imposed upon the complainant (if any).
c) To direct the Opposite party to waive off illegal, arbitrary, unlawful, and malafide charges that are not a part of the Apartment Buyer Agreement, such as electricity meter charges, club house membership charges, DG conversion to PNG charges, which are to be borne by the Opposite Party, as it was promised by the Opposite Party to make provisions of these services.
d) That the Respondent be directed to make the Complainants a part of the Residents Welfare Association and accept their Form 10 & Deed of Apartment, plus any other documents and formalities to enable them to become the part of Association of Apartment Owners and exercise their rights as members.
The following may be read as the Amended Prayer Clause in the complaint
a) To direct the Respondents to reimburse pre-equated/ Equated installments to the Complainant in light of the Tripartite agreement dated 17.02.2016, from February, 2019 onwards till the physical and actual handing over of possession to the complainant along with interest as applicable from the due date of each payment till the date of realization.
b) To direct the Opposite Party to reimburse the amount of Rs.
4,64,165, as charged by the ICICI Bank from the complainant in lieu of extension granted due to moratorium as requested by the Opposite Party.
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c) To direct the Opposite Party to reimburse the illegal amount of GST, VAT, TDS charged and deducted (if any) and adjust the same in the accounts to the complainant. d) To direct the Opposite Party to charge the complainant on Carpet area and not on Super Built up area, of the said unit monthly maintenance, stamp duty on sale and purchase of the said unit etc. and as per the mandate of law.
e) To direct the Respondent to pay, the delayed possession interest @ 12% per annum for the delayed period, ie., from the due date of possession till the offer of possession, on the amount received on behalf of the complainant by the respondent.
f) To direct the Opposite party to pay damages of Rs 10,00,000/- for causing mental agony and harassment, loss of rental income, burden of EMI/ Pre-EMI,penal interest by the bank to the complainants. g) To direct the Opposite party to pay Rs. 2,00,000/- as a litigation cost to the Complainant.
h) To direct the Opposite Party to compensate for increase in circle rates and stamp duty due to the delay in possession, by the Opposite Party.
i) To direct the opposite party to execute the conveyance deed in favour of the complainants, within 30 days of handing over of physical possession to the complainant.
j) Any other or future relief which this Hon'ble Commission may deem fit under the facts and circumstances of the case may also be granted in favour of the complainants.
Reply to the application has been filed by the OP, opposing the amendment sought by stating therein that the application is not maintainable and is also devoid of any merit and hence is required to be dismissed; application is an afterthought, as the pleadings in present case have been completed and the matter is fixed for final arguments; the amendment sought by the Complainants at this juncture would unduly Page 3 of 5 VINITA MENDIRATTA & ANR. V. ATS REAL ESTATE BUILDERS PVT. LTD.
prolong the proceedings and cause unnecessary delay; there are no cogent reasons or compelling circumstances stated by the Complainants in the application; amendment sought by the Complainants changes the nature of the case. It is further stated that the Complainants cannot make any material changes in the complaint by means of an amendment and great prejudice will be caused to the Respondent if the present application of the Complainants is allowed by this Hon'ble Commission.
The OP has further stated that the amendment cannot be permitted as the present case is at the stage of final disposal and at this stage if the case is to be amended then the proceedings will have to commence denovo, which shall cause prejudice to the Respondent.
We have gone through the record of the case. The amendments sought are extract of the Builder Buyer Agreement executed between the parties and averments related thereto. By way of amendment, the Complainant has sought to place on record the Offer of Possession dated 20.06.2023, emails dated 16.6.2023, 09.08.2023, 31.01.2024 & 04.02.2024 exchanged between the parties. Similarly, the amendments in the prayer clause are subsequent to the aforesaid amendments sought by the Complainant.
In our view, the amendment sought will not in any way change the nature of the complaint. No doubt, this application has been filed at the stage of arguments but the law of amendment being liberal; legally amendment can even be allowed at the appellate stage which is a settled legal position. The provisions of Civil Procedure Code under Order 6 Rule 17 are strictly not applicable before the Consumer Fora and amendment can be allowed if it is in the interest of justice and for just decision of the case.
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Further, it will not be out of place to mention here that for the purpose with which the consumer dispute has been raised in the complaint, this amendment is necessary for proper adjudication of this complaint. Our view is supported by the decision of the Honble National Commission in the case of Sua, Shailaja and another Vs. Peerless Finance Corporation, 1992 (2) CLT 392 (NC), whereby it has held that parties can seek amendment of the complaint at the appellate stage as the appeal is a continuation of the original proceedings.
In view of the aforesaid discussion, we find no reason to disallow the application filed by the Complainant. However, as the present complaint was filed on 24.12.2020 and the application for amendment has been filed on 13.02.2024 after a period of about three years and as such the applicant/complainant is burdened with cost of Rs.2,000/- to be deposited with Delhi State Consumer Welfare Fund (Legal Aid).
Let amended Complaint by filed by the Complainant. Opposite party is directed to file the written statement only to the extent of the amendments sought by the Complainant.
Re-list on 12.09.2024 for further proceedings.
(Justice Sangita Dhingra Sehgal) President (J.P. Agrawal) Member (G) Tri Page 5 of 5