State Consumer Disputes Redressal Commission
M/S Hill View Infrastructure Pvt. Ltd vs Anil Kumar Bansal on 19 July, 2011
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH. Appeal Case No. 335 of 2010 Date of institution: 17.09.2010 Date of decision : 19.07.2011 1. M/s Hill View Infrastructure Pvt. Ltd., Registered Office: 2048, Sector 15-C, Chandigarh, Branch office: SCO 2474, Sector 22-C, Chandigarh. 2. Hill View Infrastructure Pvt. Ltd., through its Director Sh. Lalit Jindal. 3. Hill View Infrastructure Pvt. Ltd., through its Director Sh. Ruchit Mahajan. 4. Hill View Infrastructure Pvt. Ltd., through it s Director Sh. Anil Bansal. . Appellants Versus Anil Kumar Bansal, Son of Sh. Nand Lal, Resident of House no. 2335, Sector 23-C, Chandigarh. .. Respondent. Appeal U/S 15 of the Consumer Protection Act,1986 QUORUM : Justice Sham Sunder, President Mrs. Neena Sandhu, Member
Present:
Sh.Anuj Kohli, advocate for the appellants Sh.Sandeep Bhardwaj,advocate for the respondent.
Per Justice Sham Sunder , President This appeal is directed against the order dated 17.8.2010, rendered by the District Consumer Disputes Redressal Forum-I, U.T. Chandigarh (hereinafter to be referred as the District Forum only), vide which it accepted the complaint and directed the OPs (now appellants)to refund the amount of Rs.4,75,000/- to the complainant (now respondent) alongwith interest @ 12 % p.a. from the date of deposit till its actual payment. It was also directed that if the amount was not paid within thirty days from the date of receipt of a copy of the order, the OPs would be liable to pay penal interest @ 15% p.a. from the date of deposits, till the actual payment was made to the complainant.
2. The complainant booked one flat with the OPs on 05.08.2007. He paid a sum of Rs.1,03,238/- on 29.09.2007, Rs.1,21,733/- on 3.12.2007, Rs.2,00,000/- on 29.04.2008 and Rs.50,029/- on 17.06.2008. The total cost of the flat was Rs.5,30,000/-, out of which Rs.4,75,000/- had been paid by the complainant. The amount of Rs.50,000/- was to be paid at the time of possession of the flat. An agreement to sell was executed on 28.09.2007,vide which it was agreed that the possession of Flat No. H-202 would be given to the complainant within 18 months from the date of allotment. The allotment letter dated 28.09.2007 was issued to him and the possession was to be handed over to him on 27.04.2009. The OPs failed to handover the possession of the flat to the complainant, within the stipulated period. On 18.03.2009, the complainant was informed by the OPs, that the project was stopped due to certain unavoidable circumstances and the possession of the flat would be handed over in September, 2009.
On 6.09.2009 and 20.09.2009, the complainant visited the site and found that no construction activity was going on. He visited the office of the OPs, several times, with the request that he be delivered possession of the flat, but all in vain. On 09.02.2010, the complainant sent a legal notice to the OPs, but no response was received. It was further stated that the aforesaid acts, on the part of the OPs, amounted to deficiency in service, and 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 by him.
3. In their written reply, the OPs admitted the factual matrix of the case. It was, however, stated that, as per settlement between the parties, the Courts at Baddi and the High Court of Himachal Pradesh had the jurisdiction to entertain any dispute between them in respect of the present transaction. It was further stated that in view of the said settlement/agreement, between the parties, the District Forum at Chandigarh had no jurisdiction, whatsoever, to entertain the complaint and decide the same. It was further stated that the complainant was informed way back that F-tower would be constructed in the third phase, subject to inflow of funds, and number of customers. He was requested to choose a flat, out of the vacant flats, on first come first served basis, in any other blocks/tower, but he did not do so. It was further stated that the construction and possession of flats in different phases, were subject to Force Majeure clause (condition no. 34 of the agreement). It was further stated that the construction of the flat was delayed, and consequently, delivery of possession was also delayed, because of pendency of the litigation involving a part of the land, where the project was under execution. It was further stated that as a goodwill gesture, the OPs had been paying instalments, to the bank, for the loan facility, which had been availed of, by the complainant. It was denied that the OPs were deficient, in rendering service and indulged into unfair trade practice. The remaining allegations, were denied, being wrong.
4. The parties led evidence, in support of their case.
5. After hearing the Counsel for the parties, and, on going through the evidence and record, the District Forum accepted the complaint, in the manner, referred to, in the opening para of this order.
6. Feeling aggrieved, the instant appeal, was filed, by the appellants/OPs.
7. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
8..
The Counsel for the appellants, submitted that the complainant/respondent, applied for the allotment of a flat, and also deposited a sum of Rs.4,75,000/-, from time to time, towards the price thereof. He further submitted that, due to the circumstances, beyond the control of the appellants i.e. on account of pendency of a civil suit, in which stay was granted by the Civil Court, the flats could not be constructed, in time, and consequently, there was a delay in delivering the possession of the same. He further submitted that the appellants gave an offer to the complainant, to opt for a flat, in another tower, on first come first served basis, but he refused to do so. He further submitted that even the appellants paid the instalments, towards the loan, which had been availed of, by the complainant from the bank. He further submitted that in making payment of some instalments, the complainant made a default. He further submitted that even a sum of Rs.50,000/- which was still due, towards the price of the flat, was not paid by the complainant. He further submitted that even the complainant concealed the material facts, from the District Forum, in as much as, he did not disclose, in the complaint, that the appellants were depositing instalments, towards the repayment of loan, availed of by him(complainant) from 30.4.2008 to 30.4.2010 @ Rs.5125/- every quarter. He further submitted that, in these circumstances, the complainant/respondent was not entitled to any interest. He further submitted that even the District Forum was wrong, in not ordering the refund of the amount, by the complainant, deposited by the appellants, towards EMIs of his loan, from 30.4.2008 to 30.4.2010, which on calculation comes to Rs.46,125/-. He further submitted that the order of the District Forum, being illegal, is liable to be set aside.
9. On the other hand, the Counsel for the respondent/complainant, submitted that the complainant deposited Rs.4,50,000/- towards the part price of the flat, allotted to him, by the OPs. He further submitted that a sum of Rs.50,000/- was to be paid, at the time of delivery of possession. He further submitted that since the possession was not delivered, and no progress with regard to construction of flat, which was allotted to the complainant, was made, despite repeated requests to the OPs, he had to seek refund. He further submitted that the payment of instalments was made by the complainant at Chandigarh and even the Head office of OP NO.1, is at Chandigarh and,as such, a cause of action arose to the complainant to file complaint, before the District Forum at Chandigarh. He further submitted that there was no stay with regard to the land, over which the tower, in which the flat was allotted to the complainant, was to be constructed. He further submitted that, no doubt, the instalments towards the loan, availed of by the complainant, from the bank, referred to above, were paid by the OPs. He further submitted that the District Forum was right, in coming to the conclusion, that the OPs were deficient, in rendering service. He further submitted that the order of the District Forum, being legal and valid is liable to be upheld.
10. After giving our thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, and, on going through the evidence and record of the case, we are of the considered opinion, that the appeal is liable to be dismissed with modification, for the reasons, to be recorded hereinafter. The first question, that arises for consideration, is, as to whether, the District Forum at Chandigarh had the territorial jurisdiction, to entertain the complaint, and decide the same, or not ? Admittedly, the payment of instalments was made by the complainant at Chandigarh. It is also an admitted fact that the Head office of OP No.1 is at Chandigarh. Under these circumstances, cause of action, accrued to the complainant, within the territorial jurisdiction of the District Forum at Chandigarh. In Associated Road Carriers Ltd., Vs. Kamlender Kashyap & Ors.-I (2008) CPJ 404 (NC), the principle of law, laid down, by the National Commission, was to the effect that a clause of jurisdiction, by way of an agreement, between the parties, could not be made applicable, to the Consumer Complaints, filed before the Consumer Foras, as the Foras are not the Courts. It was further held, in the said case, that there is a difference between Section 11 of the Act and the provisions Sections 15 to 20 of the Civil Procedure Code, regarding the place of jurisdiction. As stated above, since cause of action, accrued to the complainant, at Chandigarh, the District Forum at Chandigarh, in view of the provisions of Section 11 of the Act, had the jurisdiction to entertain and decide the complaint.
11. No doubt, the Counsel for the appellants placed reliance upon A.B.C.Laminart Pvt. Ltd. and another Vs A.P.Agencies, Salem AIR 1989 Supreme Court 1239 and Balaji Coke Industry Pvt. Ltd. Vs M/s Maa Bhagwati Coke (Guj) Pvt. Ltd. 2009(4)RCR (Civil)554 (SC) to contend that where two or more Courts, had the jurisdiction to entertain the suit or proceedings, on the basis of mutual agreement, the parties could vest the jurisdiction only on one of such Courts. It was further held that, such an agreement, would not be legally invalid. There is, no doubt, with regard to the principle of law, laid down, in these cases, relating to the interpretation of Sections 15 to 20 of the Code of Civil Procedure , and not Section 11 of the Act. All the provisions of the CPC, including the provisions of Sections 15 to 20, are not applicable, to the proceedings, in a Consumer Complaint, filed under the Act. It is Section-11 of the Act, which is relevant for deciding, as to whether, a particular District Forum, has got jurisdiction to entertain and decide the complaint, as the Forums do not fall within the ambit of Courts as held in Associated Road Carriers Ltd.s case(supra). No help, therefore, can be drawn by the Counsel for the OPs, from A.B.C.Laminart Pvt.
Ltd. and another s, and Balaji Coke Industry Pvt. Ltd.s cases(supra). The submission of the Counsel for the appellants, therefore, being devoid of merit, must fail, and the same is rejected.
12. C-4 is the agreement, executed between the parties, vide which it was agreed that the possession would be delivered within 18 months of allotment. No doubt, the word tentative is mentioned, in the relevant clause, and according to the Counsel for the appellants, it was not the final date, on or before which, the possession was to be delivered. No doubt, on account of the circumstances, beyond the control of the OPs, or due to force majeure clause contained in the agreement, time could be extended. It is evident from para-7 of the order of the District Forum, that a Civil Suit, had been filed by one Sunil in the Court of Shri Madan Kumar, Civil Judge, Senior Division, Nalagarh, wherein OP/3, interim order dated 21.6.2008, was passed restraining the OPs from interfering in and over the land measuring 14 biswas, bearing Khasra No. 633, comprising Khautani/Khewat No.93/100, situated in the area of Village Kunjahal, Dharmpur, Tehsil Nalagarh, Distt. Solan. No document, however, was produced by the OPs, that the Tower, in which the flat was allotted to the complainant, was to be constructed, on Khasra No.633, which was the subject matter of the aforesaid Suit. Even, the order, subsequent to the order dated 21.6.2006 OP/3, was not produced by the Counsel for the appellants. Under these circumstances, the District Forum, was right, in holding that the force majeure clause 34 of the agreement, was not applicable to the facts of the case. The District Forum, was also right, in holding that the construction of the Tower, in which the flat, was allotted to the complainant, was not made by the OPs, for the reasons known to them, and not on account of the circumstances beyond their control. The District Forum, was also right, in holding that, as such, the time for construction and delivery of possession could not be extended by invoking clause 34 of the agreement.
13. The next question that arises for consideration, is, as to whether, the flat, in any other tower, was offered to the complainant, and, if so, what were the circumstances, under which he refused to accept the same. From para-9 of the order of the District Forum, it is evident, that the Counsel for the OPs (now appellants) advanced argument that due to recession in the market, the OPs were unable to raise construction of the tower, in which the flat was allotted to the complainant, and, therefore, he was given an option to choose any other flat, in the towers, which were near completion. It proves that the offer was made to the complainant, to choose the flat, in any tower, which was near completion. The complainant, did not agree to the same, on the ground, that the tower, in question, in which the flat was allotted to him, had a peculiar location and hill view. Once a flat is allotted, to the prospective vendee, and an agreement is executed, between the parties, with regard to allotment of the same, then the service provider cannot change the terms and conditions unilaterally. It was for the complainant, to consider, as to whether, he wanted a flat, in some other tower, which was near completion. Since, the location and the hill view, of other flat, which was offered to the complainant, in other towers, was not the same, as was of the flat, which was allotted to him, in a different tower, he validly refused such offer. The OPs could not thrust a flat, upon the complainant, which was not of his choice. The District Forum was, thus, right in coming to the conclusion, that the OPs were deficient, in rendering service, by not constructing and delivering possession of the flat, allotted to the complainant. The District Forum was, thus, right in coming to the conclusion, that the OPs were liable to refund the amount, aforesaid, to the complainant, with interest.
14. No doubt, a sum of Rs.50,000/- was not paid by the complainant, as the same was to be paid at the time of delivery of possession of the allotted plot, but the OPs failed to deliver the same. In Prasad Homes Private Limited Vs E.Mahender Reddy & Ors. I(2009) CPJ 136(NC), it was held that a builder could not be allowed to take shelter, under the relevant clause of the agreement, to usurp money, deposited by the complainant, merely on account of the reason that payment of further instalments, was stopped by him as there was no construction activity. Non-payment of Rs.50000/-, (fifty thousand)therefore, could not constitute a valid ground not to refund the already deposited amount to the complainant. The submission of the Counsel for the appellants, in this regard, being without merit, must fail, and the same is rejected.
15. The Counsel for the appellants, however, placed reliance on Eugene Rent Vs Shirin Farias Prabhu (II) 2011CPJ 154(NC) , to contend that, in a similar situation, when another flat was offered to the complainant, but he refused to accept such offer, the Honble National Commission, directed the refund of the amount, deposited by the complainant, with no interest. The National Commission, in the aforesaid case, came to the conclusion, that no interest was liable to be paid to the complainant, on the value of the A schedule property, as the possession of the same remained with him (complainant) till 8.6.2000. In the instant case, the possession of the flat was never delivered to the complainant.
He was also not in possession of any other flat of the OPs. The facts of the aforesaid case, are clearly distinguishable, from the facts of the instant case and, thus, no help can be drawn, by the Counsel for the appellants therefrom.
16. The next question, that arises for consideration is, as to whether, the OPs were entitled to the refund of the amount of Rs.46,125/- deposited by them, on account of instalments towards the repayment of loan advanced, in favour of the complainant. In our opinion, the OPs were certainly entitled to the refund of this amount, as it was not their liability, to pay the same, yet, they paid the same, on behalf of the complainant. The detail of this amount is given in the chart at page 71 of the file of the District Forum, which comes to Rs.46125/-. The District Forum, fell into an error, in not ordering the refund of this amount to the OPs, by the complainant.
17.. For the reasons recorded above, the appeal is dismissed, with no order as to costs, with the modification, that out of the amount, which is directed to be paid by the OPs(now appellants) to the respondent(complainant) by the District Forum, a sum of Rs.46125/- referred to in para 16 of this order, shall be deducted. The order of the District Forum, with the aforesaid modification, is upheld.
18. Certified Copies of this order be sent to the parties, free of charge.
19. The file be consigned to record room.
Sd/-
Announced (JUSTICE SHAM SUNDER) 19th July,2011 President Sd/- ( NEENA SANDHU) Member STATE COMMISSION Appeal case NO.335/2010 Present:
Sh.Anuj Kohli, advocate for the appellants Sh.Sandeep Bhardwaj,advocate for the respondent.
Dated the 19th day of July,2011 ORDER Vide our detailed order of the even date, recorded separately, this appeal has been dismissed with modification , with no order as to costs.
(Justice Sham Sunder) (Neena Sandhu ) President Member