State Consumer Disputes Redressal Commission
Kavita vs The Punjab State Federation Of ... on 12 September, 2019
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
1.
Consumer Complaint No.368 of 2019
Date of Institution : 03.05.2019
Date of Reserve : 30.08.2019
Date of Decision : 12.09.2019
Smt.Kavita W/o Sh.Rakesh Kumar, Resident of Flat No.180, Floor 3rd,
Category-I at Cooperative Housing Complex, Sector 79, (Group-II),
SAS Nagar, Mohali.
....Complainant
Versus
1. The Punjab State Federation of Cooperative House Building
Society Ltd., (Housefed), Punjab through its Managing Director,
SCO No.150-151-152, Sector 34-A, Chandigarh.
(http://punjabcooperation.gov.in./html/housefed.html)
2. The Superintending Engineer, Punjab State Federation of
Cooperative House Building Society Ltd.(Housefed), Punjab,
SCO No.150-151-152, Sector 34-A, Chandigarh.
(http://punjabcooperation.gov.in/html/housefed.html)
....opposite parties
2.
Consumer Complaint No.369 of 2019
Date of Institution : 03.05.2019
Date of Reserve : 30.08.2019
Date of Decision : 12.09.2019
Consumer Complaint No 368 of 2019 2
Anup Kumari W/o Sh.Ravi Kumar, Resident of Flat No.1679-A, Floor-
1st Category-IV at Cooperative Housing Complex, Sector -79, (Group-
II), SAS Nagar, Mohali.
....Complainant
Versus
1. The Punjab State Federation of Cooperative House Building
Society Ltd., (Housefed), Punjab through its Managing Director,
SCO No.150-151-152, Sector 34-A, Chandigarh.
(http://punjabcooperation.gov.in./html/housefed.html)
2. The Superintending Engineer, Punjab State Federation of
Cooperative House Building Society Ltd.(Housefed), Punjab,
SCO No.150-151-152, Sector 34-A, Chandigarh.
(http://punjabcooperation.gov.in/html/housefed.html)
....opposite parties
3.
Consumer Complaint No.370 of 2019
Date of Institution : 03.05.2019
Date of Reserve : 30.08.2019
Date of Decision : 12.09.2019
Gurinder Singh S/o Sh.Amarjit Singh, Resident of Flat No.1681-A,
Floor-1st, Category -IV at Cooperative Housing Complex, Sector-79,
(Group-II), SAS Nagar, Mohali.
....Complainant
Versus
1. The Punjab State Federation of Cooperative House Building
Society Ltd., (Housefed), Punjab through its Managing Director,
SCO No.150-151-152, Sector 34-A, Chandigarh.
Consumer Complaint No 368 of 2019 3
(http://punjabcooperation.gov.in./html/housefed.html)
2. The Superintending Engineer, Punjab State Federation of
Cooperative House Building Society Ltd.(Housefed), Punjab,
SCO No.150-151-152, Sector 34-A, Chandigarh.
(http://punjabcooperation.gov.in/html/housefed.html)
....opposite parties
4.
Consumer Complaint No.371 of 2019
Date of Institution : 03.05.2019
Date of Reserve : 30.08.2019
Date of Decision : 12.09.2019
Minakshi Sharma W/o Sh.Narotam Sharma, Resident of Flat No.56,
Floor 3rd, Category-II, at Cooperative Housing Complex, Sector -79
(Group-I), SAS Nagar, Mohali.
....Complainant
Versus
1. The Punjab State Federation of Cooperative House Building
Society Ltd., (Housefed), Punjab through its Managing Director,
SCO No.150-151-152, Sector 34-A, Chandigarh.
(http://punjabcooperation.gov.in./html/housefed.html)
2. The Superintending Engineer, Punjab State Federation of
Cooperative House Building Society Ltd.(Housefed), Punjab,
SCO No.150-151-152, Sector 34-A, Chandigarh.
(http://punjabcooperation.gov.in/html/housefed.html)
....opposite parties
Consumer Complaint No 368 of 2019 4
5.
Consumer Complaint No.372 of 2019
Date of Institution : 03.05.2019
Date of Reserve : 30.08.2019
Date of Decision : 12.09.2019
Gurdeep Singh S/o Sh.Sewa Singh, Resident of Flat No.1628-C,
Floor-3rd, Category-IV, at Cooperative Housing Complex, Sector-79
(Group-II), SAS Nagar, Mohali.
....Complainant
Versus
1. The Punjab State Federation of Cooperative House Building
Society Ltd., (Housefed), Punjab through its Managing Director,
SCO No.150-151-152, Sector 34-A, Chandigarh.
(http://punjabcooperation.gov.in./html/housefed.html)
2. The Superintending Engineer, Punjab State Federation of
Cooperative House Building Society Ltd.(Housefed), Punjab,
SCO No.150-151-152, Sector 34-A, Chandigarh.
(http://punjabcooperation.gov.in/html/housefed.html)
....opposite parties
6.
Consumer Complaint No.373 of 2019
Date of Institution : 03.05.2019
Date of Reserve : 30.08.2019
Date of Decision : 12.09.2019
Beant Kaur W/o Sh.Paramjit Singh Brar, Resident of Flat No.1623-A,
Floor-1st, Category-IV at Cooperative Housing Complex, Sector-79
(Group-II), SAS Nagar, Mohali.
Consumer Complaint No 368 of 2019 5
....Complainant
Versus
1. The Punjab State Federation of Cooperative House Building
Society Ltd., (Housefed), Punjab through its Managing Director,
SCO No.150-151-152, Sector 34-A, Chandigarh.
(http://punjabcooperation.gov.in./html/housefed.html)
2. The Superintending Engineer, Punjab State Federation of
Cooperative House Building Society Ltd.(Housefed), Punjab,
SCO No.150-151-152, Sector 34-A, Chandigarh.
(http://punjabcooperation.gov.in/html/housefed.html)
....opposite parties
Consumer Complaints under Section 17 of
the Consumer Protection Act, 1986.
Quorum:-
Mr.Rajinder Kumar Goyal, Presiding Member
Mrs. Kiran Sibal, Member Present(CC No.368 of 2019):-
For the Complainant : Ms.Palak Dev, Advocate
For the opposite parties : Ms.Vertika H.Singh, Advocate
RAJINDER KUMAR GOYAL, PRESIDING MEMBER :
This order will dispose of above mentioned six (6) Consumer Complaints filed by the different complainants against the same opposite parties, under Section 17 of the Consumer Protection Act, 1986 (in short, "the Act"), as the facts and the questions of law involved in all these complaints are the same and all the complaints pertains to the dispute of allotment of flat in the same Scheme of the Consumer Complaint No 368 of 2019 6 opposite parties. The facts are taken from Consumer Complaint No.368 of 2019.
2. The complainant has filed this complaint, under Section 17(1)(a)(i) of the Consumer Protection Act 1986, (in short, "the Act"), for issuance of the following directions to the opposite parties:
i) to be paid interest of Rs.24,69,600/- (@18% p.a. of Rs.17,15,000/-) on the amount received by the opposite parties as 8 quarterly instalments from the date of its deposit till the date of possession;
ii) to refund Rs.2,00,000/- towards deficiency of service;
iii) to refund the conveyance deed charges i.e. Rs.3,52,000/-
along with interest @12% p.a.;
iv) to refund the excess amount charged on account of revised/enhanced cost of the flat;
v) to pay compensation of Rs.1,00,000/- for mental agony and harassment and Rs.50,000/- towards litigation expenses; and
vi) any other additional or alternate relief which this Commission may deem fit.
3. Brief facts, as stated in the complaint, are that the complainant applied for a flat of Category-I in the housing scheme floated by the opposite parties in the year 2004 in Sector 79, SAS Nagar, Mohali for which draw of lots was held on 03.03.2004 and the complainant was declared as successful allottee. Accordingly, the Flat No.180, 3rd Floor, Category-I, Group-I was allocated to the complainant vide letter No.Hfed/TW/3855 dated 24.03.2004. There were two options to make Consumer Complaint No 368 of 2019 7 the payment, Option -I and Option-II. The complainant chose to pay the payment as per Option-II in which the complainant was to pay 100% of the price of the flat. The opposite parties did not adhere to their agreed schedule of construction which was linked with the payment, whereas they demanded the payment as per schedule. The possession of the flat was to be delivered in 2006 immediately after last instalment on 31.03.2006. In June, 2006, the opposite parties sent a letter to all the allottees, wherein it was detailed that the land on which the construction is raised is under some legal dispute, therefore, construction cannot be raised until and unless the dispute is over. It is further averred that vide letter dated 07.10.2005, the opposite parties have used to veil to cover up the delay in the construction work of the flats as both Housefed and GMADA have been helping each other with hidden intentions. In written statement to CWP No.8766 of 2005, the PUDA had already handed over possession to Housefed in 2003 and issued possession certificate on 08.04.2003. In the advertisement given by the opposite parties in Indian Express newspaper on 16.11.2008 stated that construction is being started shortly. The Housefed Flat Owner Welfare Society (Regd.) also apprised the Commissioner, Housefed about the situation they were facing. Later, it Housefed Flat Owner Welfare Society came to know that there were not stay granted in the above said matter and delaying the project by taking the excuse of stay. In the year 2009, the Chief Engineer, GMADA appraised the Housefed officials that there is no impediment in the construction of the said Housing Complex as per their layout plan but still the construction did Consumer Complaint No 368 of 2019 8 not start. When no satisfactory reply was received from the opposite parties, they wrote numerous letters to start the construction of flats. The opposite parties have collected a huge amount of Rs.35-37 crore. Vide letter dated 08.09.2010, opposite party No.1 informed the President of the Society that the work of construction had been allotted and the contractor would start the same soon, whereas opposite party No.2 informed the President of the Society that the construction had been started. The complainant sent a notice to the opposite parties for reimbursement of interest which the opposite parties received on the amount of the complainant. Vide letter ref. No.1806 dated 15.05.2014 the opposite parties given two choices to 52 allottees to whom the possession has not been given till now i.e. either the allottees can wait for the possession but in this case they will be bound to pay the escalated cost of the flats as fixed or they can get refund of their deposited amount along with interest @10% per annum. Vide letter dated 14.07.2014, the complainant was sent intimation for possession along with demand of balance payment of Rs.24,71,000/-. The said payment was made by the complainant under protest. Opposite parties are liable to pay interest and compensation to the complainant for the delay in construction and handing over possession. A tripartite meeting which was attended by Registrar, Cooperative Societies, Punjab, M.D. Housefed, Punjab, Senior Engineer, Housefed Punjab and Housefed Flat Owners Welfare Society for specifically discussing the payment of interest to allottees, amongst other ancillary issues. The then, Chairman passed instructions to MD, Housefed to prepare the case for payment of Consumer Complaint No 368 of 2019 9 interest to allottees and put it up before the Board of Director, Housefed, Punjab but the issue has been lost in office files till date, despite various reminders. It is further averred that it is a settled law that the long delay in delivery of possession itself amounts to deficiency in service. Alleging deficiency in service and unfair trade practice on the part of the opposite parties, complainant filed the complaint seeking all the above mentioned reliefs.
4. Upon notice, the opposite parties appeared and filed its written statement by taking preliminary objections that the complaint is barred by limitation since the complainant had already taken the possession of the said unit on 15.12.2014. It was further contended that two pieces of land measuring 5.50 acres and 5.49 acres was allotted to the opposite parties by PUDA vide letter dated 11.03.2003, The booking was opened on 31.01.2004 and closed on 23.02.2004. The said scheme was self-financed and the balance payment was to be made in easy installments. The complainant was issued letter of allocation dated 24.03.2004 who applied for category-I flat in Cooperative Housing Complex, Sector 79, SAS Nagar, Mohali. Because of stay order passed by the Hon'ble High Court, PUDA could not deliver the possession of the allotted land to the OPs. The Board of Directors of the Housefed passed a resolution on 19.05.2006 wherein they gave option to the allottees either to seek refund of the earnest money deposited by them along with interest at the rate 10% p.a. or send their consent to retain the flat at the enhanced cost which will be intimated during/after construction of flats. The option was to be exercised by 31.07.2006 failing which the Consumer Complaint No 368 of 2019 10 earnest money along with interest was to be refunded. Accordingly, the complainant submitted the undertaking for paying the enhanced cost to be fixed after completion of construction. The intimation for draw of lots was given to the complainant vide letter dated 15.05.2014. The final cost of the flat was determined as Rs.41,86,000/- and the complainant paid Rs.17,15,000/-. Before taking the possession, the complainant was required to pay Rs.24,71,000/-, which she paid and physical possession of the flat was delivered on 15.12.2014. The complaint has been filed on 03.05.2019 which is barred by limitation under Section 24-A of the Act and liable to be dismissed. The complainant does not fall under the definition of consumer as defined under Section 2(d) of the Act as the complainant is an investor and invested in the said flat for resale purposes. The issue raised, relate to the contractual matter arising out of the terms and conditions of the Agreement and interpretation thereof, which can only be adjudicated in civil proceedings. The complaint filed by the complainant is false, frivolous and vexatious. The complaint is not maintainable under the provisions of the Act as no cause of action has arisen in favour of the complainant. On merits, it is submitted that vide the first scheme as mentioned by the complainant 60% of the tentative cost of the flat was to be paid in 8 equal quarterly installments, which included the initial deposit and registration money by 31.03.2006. The remaining 40% cost of the flat was to be paid in 120 equal monthly instalments along with interest @11% p.a. or within 30 days without any interest. It is further submitted that the final cost of the said unit was determined after Consumer Complaint No 368 of 2019 11 completion of construction and the complainant was bound to pay the enhanced cost of the flat as per the undertaking. The opposite parties wrote a D.O. letter dated 14.07.2009 to the Chief Administrator, GMADA in reply to which the Estate Officer, GMADA had written that a meeting held under the Chairmanship to Chief Minister, Punjab- cum-Chairman, GMADA and Housefed was allowed to raise the construction after leaving Khasra No.14/2/25/2/(3K-2M) which was under litigation. The construction status was informed to the public by publishing a news article in the newspaper. The complainant does not have any locus standi to raise grievance on behalf of other allottees. There is no deficiency in service or unfair trade practice on the part of the opposite parties. Rest all the averments as averred by the complainant in his complaint were denied and prayed to dismiss the complaint.
5. To prove her case, the complainant has filed her affidavit along with documents as Ex.C-1, Ex.C-2 (colly), Ex.C-3(colly), Ex.C- 4(colly), Ex.C-5(colly), Ex.C-6(colly), Ex.C-7 to Ex.C-12, Ex.C- 13(colly), Ex.C-14(colly) and Ex.C-15(colly).
6. On the other hand, opposite parties in support of their contentions has filed the affidavit of Rakesh Shangari, Officiating Chief Account Officer along with documents as Ex.OP-1 to Ex.OP-7.
7. We have heard the learned counsel for the parties and have gone through the record carefully.
8. Learned counsel for the complainant vehemently contended that the opposite parties floated a scheme under the name and style of "Co-operative Housing Scheme of Built up flats" in Sector 79, Consumer Complaint No 368 of 2019 12 S.A.S. Nagar, Mohali, in two different pockets, measuring 5.50 acres and 5.49 acres in the year 2004. However, at the time of making advertisement, the opposite parties were not in possession of the land and the same was given to them by PUDA only on 22.01.2010. The construction of the project started late in the year 2010. Thus, the opposite parties had no right to collect 60% of the amount from the allottees, when there was no construction during that period. It was further contended that there was no stay qua Complex, in which the flat in question was situated and, thus, the opposite parties have committed fraud upon the allottees, by telling a lie that there had been stay granted by the Hon'ble High Court; specifically when no stay order has been brought on record by it. It was further contended that no specific period was given in the Brochure for delivering possession of the flats to the allottees. After collecting 60% amount illegally, without raising any kind of construction, the opposite parties obtained option from the complainant to retain the flat and got her made bound to pay the remaining amount towards enhanced price of the flat, fraudulently. Obtaining of such option/undertaking from her, without raising any kind of construction or developing the project, is illegal and amounts to unfair trade practice on the part of the opposite parties. Still further, as per letter dated 21.10.2009, Ex.OP-6, there was no stay order qua Pocket-2 and, as such, the construction was delayed, without any sufficient reason. It was further contended that the cost of the flat has been increased about 3 times of the tentative cost thereof, but no calculations, details or basis of such an huge increase have been provided by the opposite parties. It was further Consumer Complaint No 368 of 2019 13 contended that the scheme was launched in the year 2004, whereas the possession of the flat, in question, was offered to the allottee in the year 2014 i.e. after expiry of 10 years, without any cogent explanation. There was no exact date given in the Brochure regarding delivery of possession and delay in delivering the possession amounts to deficiency in service on the part of the opposite parties. As such, the complainant is entitled to all the reliefs, as claimed in the complaint.
9. Per contra, learned counsel for the opposite parties vehemently contended that the scheme, in question, was partially self-financed and balance payment was to be made in easy instalments. Due to stay order passed by the Hon'ble High Court, PUDA could not deliver possession of the land to the opposite parties and, thus, the Board of Directors of Housefed passed a resolution on 19.05.2006, giving an option to the allottees, either to seek refund of the earnest money deposited by them, along with interest at the rate of 10% per annum or send their consent to retain the flat at the enhanced cost, which was to be intimated during the course of construction/after the construction of flats. The said option was to be exercised by 31.07.2006, failing which the earnest money, along with interest, was to be refunded. The complainant duly exercised the said option, giving undertaking to remain bound to pay the enhanced cost as fixed by the Housefed during the course of construction/after completion. It was further contended that after the vacation of the stay order by the Hon'ble High Court against the acquisition of land by the State of Punjab for PUDA/now GMADA, the possession of the land Consumer Complaint No 368 of 2019 14 was delivered to the opposite parties only on 22.01.2010. It was further contended that Housefed had written various letters to GMADA, seeking permission for construction on the land in Sector 79, Mohali. The Estate Officer, GMADA, had informed, vide letter dated 27.03.2008, that the Engineering Wing of GMADA has reported that due to stay granted by the Hon'ble High Court in the area falling in Sector dividing road between Sectors 79-80, the sewer line could not be laid through and, thus, both the sites were not feasible with reference to sewer line and, thus, permission for the construction of flats could not be granted. Engineering Wing of GMADA, vide letter dated 21.10.2009, further informed that because of the stay orders, there could not be connectivity of the roads and public health services and, as such, the Housefed can raise construction at its own risk and cost. Thereafter, tenders were called for executing the project and demarcation of the land was given by GMADA only on 22.01.2010. In these circumstances, there was no fault, deficiency in service or unfair trade practice on the part of Housefed. Thereafter, the opposite parties were allowed to undertake the construction and after completion thereof, the possession was offered. Final cost of the flat was determined and the complainant was asked to pay the balance amount of Rs.24,71,000/- and after payment of that amount by him, physical possession of the flat was duly delivered to the complainant on 15.12.2014. The complaint, having been filed on 03.05.2019, is barred by limitation. The complainant was duly bound to pay enhanced cost of the flat, in view of the undertaking given by her in this regard. The construction could not be completed within Consumer Complaint No 368 of 2019 15 reasonable time, due to operation of stay order passed by the Hon'ble High Court qua the land, in question. Thus, there is no deficiency in service on the part of the opposite parties and the complainant is not entitled to any relief and the complaint is liable to be dismissed.
10. We have given our thoughtful consideration to the respective contentions raised by learned counsel for the parties.
11. First of all, we would like to decide the objection raised by the opposite parties is that the complainant does not fall under the definition of 'consumer', as defined in the Act, as the complainant purchased the unit, in question, for investment purposes. In this regard, it is relevant to mention that there is no evidence from the side of the opposite parties to prove that the complainant is indulging in sale/purchase of property for commercial purpose and simple assertion in this regard in the reply of the opposite parties is not sufficient to prove this fact. Hon'ble National Commission in M/s IREO FIVERIVER PVT. LTD. v. SURINDER KUMAR SINGLA & OTHERS First Appeal No.1358 of 2016, decided on 29.11.2016, while relying upon its earlier decision in KAVITA AHUJA & OTHERS v. SHIPRA ESTATE LTD. & JAI KRISHNA STATE DEVELOPERS PVT. LTD. & OTHERS Consumer Case No.137 of 2010, decided on 12.02.2015, held the complainants as consumers, observing that the appellant failed to show any cogent evidence, which may indicate that the respondents/complainants or any of them has been indulging in sale purchase of the properties or that the complainants or any one of them had booked the subject plots in the Consumer Complaint No 368 of 2019 16 development project undertaken by the appellant with the intention to sell the plot on subsequent date for earning profit. In the instant case also, as already discussed above, there is no evidence led by the opposite parties to prove that the complainant indulged in sale/purchase of properties or that they purchased the unit, in question, for further sale or for earning profits. Accordingly, the above said objection/contention of the opposite parties is rejected and the complainant is held to be a 'consumer', under the Act.
12. Opposite parties took another objection in its written statement that the issue raised, relate to the contractual matter arising out of the terms and conditions of the Agreement and interpretation thereof, which can only be adjudicated in civil proceedings. In case we go through the pleadings of the parties, the complainant had booked one flat with opposite parties and had paid the payment as demanded by opposite parties and all the terms and conditions were incorporated in the brochure issued by the opposite parties. As per the brochure the possession was to be handed over after completed all the formalities and paid all the dues till date. It is only the interpretation of the terms and conditions and then to see whether there is any deficiency in service on the part of the opposite parties? We do not see that any complicated questions of law and facts are involved, which cannot be adjudicated by this Commission. In this regard, we are fortified by the judgment of 'Dr.J.J.Merchant and Ors. V. Shrinath Chaturvedi' 2002(6) SCC 635, wherein it was held that the State Commission and District Forum are headed by retired High Court Judges and Officers of District Judge level and in our view, this is not such a case which Consumer Complaint No 368 of 2019 17 cannot be decided by the 'Consumer Fora' after obtaining evidence and if need be after getting an expert opinion.
13. Various identical matters have already been decided by this Commission. One of the case was decided by this Commission at the admission stage. The detail of the case decided is as under:-
1) Consumer Complaint No. 407 of 2019 titled as "Sanjay Tyagi S/o Sh.Suresh Chand Tyagi Vs. The Punjab State Federation of Cooperative House Building Society Ltd. & Anr."
14. The contention raised by the learned counsel for the opposite parties is that whether the Consumer Fora has power to go into the pricing of the flat(s)?
In this regard, it is relevant to mention that the Brochure, of the said Scheme launched by the opposite parties has been produced on record in all the complaints, as Ex.C-1. Clause-7 of the Brochure deals with "Handing Over of Possession" and the same reads as under:
7 (a). The exact/final cost of the flat shall be worked out after the flats have been completed but before handing over the flat.
The cost of difference due to allotment of floor, change in covered area of flat or due to any other reason whatsoever, the same shall be payable by the allottee at the time of the possession. The price is liable to increase due to variation in plinth area, scope of work, change in specification, design, increase in cost of land, rate of interest, amount of interest, increase in the cost of raw materials or for any other reason and the same shall be binding upon the allottee."
Consumer Complaint No 368 of 2019 18
15. The opposite parties had fixed the final cost of the flats after completion of the construction and intimated the allottees / complainants to pay the balance amount (s), as per letters, Ex.C-12. The possession of the flat, in question, has already been delivered to the complainant in the last quarter of the year 2014, vide Physical Possession Certificate, Ex.C-12, after the payment of entire balance sale consideration by them.
16. Regarding the determination of the final cost of the flat, as demanded by the opposite parties, after completion of the project, Hon'ble Supreme Court in case Premji Bhai Pramar & Ors. v. Delhi Development Authority & Ors. 1980 (2) SCC 129 held as under:
"There is no suggestion that there was a mis-statement or incorrect statement or any fraudulent concealment in the information supplied in the brochure published by the Authority on the strength of which they applied and obtained flats. How the seller works out his price is a matter of his own choice unless it is subject to statutory control. Price of property is in the realm of contract between a seller and buyer. There is no obligation on the purchaser to purchase the flat at the price offered."
17. Similar proposition of law was laid down by the Hon'ble Supreme Court in case Bareilly Development Authority & Anr. v. Ajai Pal Singh & Ors. 1989 (2) CPSC 107.
18. Further in case Bangalore Development Authority v. Syndicate Bank 2007 (1) CPC 729 (SC) under the head "The Principles" in Para No.10 observed as under:
Consumer Complaint No 368 of 2019 19
10. Where a Development Authority forms layouts and allots plots/flats (or houses) by inviting applications, the following general principles regulate the granting of relief to a consumer (applicant for allotment) who complains of delay in delivery or non-delivery and seeks redressal under the Consumer Protection Act, 1986 ('Act' for short) - [vide :
Lucknow Development Authority vs. M. K. Gupta - 1994 (1) SCC 243, Ghaziabad Development Authority vs. Balbir Singh - 2004 (5) SCC 65, and Haryana Development Authority vs. Darsh Kumar - 2005 (9) SCC 449, as also Ghaziabad Development Authority vs. Union of India - 2000 (6) SCC 113]:
---------------------------
---------------------------
(f) Where the plot/flat/house has been allotted at a tentative or provisional price, subject to final determination of price on completion of the project (that is acquisition proceedings and development activities), the Development Authority will be entitled to revise or increase the price. But where the allotment is at a fixed price, and a higher price or extra payments are illegally or unjustifiably demanded and collected, the allottee will be entitled to refund of such excess with such interest, as may be determined with reference to the facts of the case."
19. Hon'ble National Commission in case Gujarat Housing Board v. Datania Amrit Lal Phulchand & Ors. III (1993) CPJ 351 (NC) observed that question of pricing cannot be gone into by the Consumer Forums, since the price of the flat is not fixed by any law and that even if any excess charge has been collected by way of price, the same will not constitute a ground for contending that there is a deficiency in service on the part of the opposite party.
20. This Commission in case Gurdial Singh v. Housefed, Consumer Complaint No 368 of 2019 20 Punjab Consumer Complaint No.269 of 2016, decided on 12.05.2017, while relying upon the aforesaid cases also held that Consumer Fora cannot go into the pricing of the flat, in question, and the complainants were bound to pay the revised cost of the flats to the opposite parties, as they entered into the contract for purchasing the flats, in question, after duly reading and understanding the terms of the Brochure and allotment letters and it cannot be a matter of deficiency in service.
21. In the instant complaints also, as already discussed above, the physical possession of the flats was taken by the complainants in the year 2014, without any pre-condition or protest. The present complaints have been filed after about 5 years therefrom, when there is no privity of contract between the parties. Therefore, applying the ratio of above noted authorities, the present complainants also ceased to be 'consumers' of the opposite parties after taking physical possession of their respective flats in the year 2014, without raising any kind of protest/objection. So far as the authorities relied upon by learned counsel for the complainants are concerned, the same are distinguishable, in view of the law laid down in the above discussed authorities.
22. It is also important to note that numerous cases have been filed/decided by this Commission earlier, in which a specific consent was sought by the Housefed from the allottees in the year 2006, seeking their options either to withdraw the earnest money deposited towards the flat, along with interest at the rate of 10% per annum or to retain the flat at the enhanced cost, to be intimated Consumer Complaint No 368 of 2019 21 during the course of construction/after construction of the flats. The allottees had duly exercised their option and gave undertakings to the Housefed, expressing their willingness to retain the flats at the enhanced cost, as fixed by Housefed during the course of construction/after completion of construction of the project. The present complaints also involve the dispute pertaining the above said period and, as such, such like consents must have been given by the complainants also. However, it seems that those consent letters have been intentionally withheld by the complainants, except in Complaint No.410 of 2019, from which it could be proved that they had made themselves bound to pay the enhanced cost fixed by the Housefed after/during construction; for which an adverse inference is to be drawn against the complainants.
23. In view of the law laid down in the above noted authorities, the Commission cannot go into the pricing of the flats fixed by the opposite parties and, as such, the complainants are not entitled to recover the difference of tentative cost and final cost of the flats, in question, nor they are entitled to any interest thereon.
24. The opposite parties raised and objection that the complaint filed by the complainant is time barred and requires to be dismissed on account of limitation as per Section 24-A of the Act.
25. Admittedly, the physical possession of the flats have been taken by the complainants in all the complaints in the year 2014, vide Physical Possession Certificates, Ex.C-12, after making payment of balance sale considerations. The complainants did not raise any kind of dispute, such as delay in delivery of possession or Consumer Complaint No 368 of 2019 22 excess charging of Conveyance Deed charges etc. at the time of taking over the possession of their respective flats. The complainant should have raised such grievances at the time of taking the possession of the flats, but for the first time they have raised the issue of delay in delivery of possession and other issues, by way of filing this complaint on 03.05.2019 i.e. after about lapse of five years of the taking over of possession by them. The complainant has produced copies of orders passed by the Hon'ble High Court of Punjab and Haryana as well as various letters sent by various allottees and Housefed Flat Owners Sangharsh Committee to the opposite parties, with an intention to bring the complaint within limitation.
26. Section 24-A of the Act lays down that the Consumer Forum shall not entertain a complaint, unless it is filed within two years from the date on which the cause of action has arisen. The Hon'ble Supreme Court in State Bank of India's case (supra) observed in Para No.8 as under:-
"8. It would be seen from the aforesaid provision that it is peremptory in nature and requires consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The consumer forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, `shall not admit a complaint' occurring in Section 24A is sort of a legislative command to the consumer forum to examine on its own whether the complaint has Consumer Complaint No 368 of 2019 23 been filed within limitation period prescribed thereunder. As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the consumer forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside."
27. This view of law was further reiterated by the Hon'ble Supreme Court in its judgment reported as "V.N. Shrikhande (Dr.) v. Anita Sena Fernandes" 2011 CTJ 1 (SUPREME COURT) (CP). It was held by the Hon'ble Supreme Court as under:-
"Section 24A(1) contains a negative legislative mandate against admission of a complaint which has been filed after 2 years from the date of accrual of cause of action. In other words, the consumer forums do not have the jurisdiction to entertain a complaint if the same is not filed within 2 years from the date on which the cause of action has arisen. This power is required to be exercised after giving opportunity of hearing to the complainant, who can seek condonation of delay under Section 24A(2) by showing that there was sufficient cause for not filing the complaint within the period prescribed under Section 24A(1). If the complaint is per se barred by time and the complainant does not seek condonation of delay under Section 24A(2), the consumer forums will have no Consumer Complaint No 368 of 2019 24 option but to dismiss the same. Reference in this connection can usefully be made to the recent judgments in State Bank of India v. B.S. Agricultural Industries (I), 2009 CTJ 481 (SC)(CP)=(2009) 5 SCC 121and Kandimalla Raghavaiah and Company v. National Insurance Company and another, 2009 CTJ 951 (SC)(CP)=(2009) 7 SCC 768."
28. Still further, Hon'ble Bombay High Court in case State of Maharashtra v. Hindustan Construction Company Anr. Arbitration Appeal No.6 of 2007 decided on 01.02.2013 held in Para No.32 as follows:
"32. In my view, refusal to pay the amount demanded by the petitioner, would not commence fresh period of limitation which had already commenced.
In view of Section 9 of the Limitation Act, 1963, once time is begun to run, no subsequent disability or inability to institute a suit or make an application stops it. Once time starts, it does not stop. Limitation is extended only when there is an acknowledgment of liability or part payment. Correspondence does not extend the period of limitation."
29. Similarly, in United Bank of India vs. Janata Paradise Hotel and Restaurant, IV (2014) CPJ 383 (NC), Hon'ble National Commission observed as under:-
"6..........This argument is devoid of force because correspondence does not extend limitation, particularly, when first request for refund is made after claim became time-barred.
In this matter, claim became time barred in the year 1995 and letter has been written on 18.11.2007. Complainant has not placed any letter from 1995 to 2007 and, thus Consumer Complaint No 368 of 2019 25 claim being barred by limitation, learned District Form committed error in allowing complaint."
30. Likewise, in Vandan Pareshkumar Manghita vs. The Divisional Manager, National Insurance Co. Ltd., 2014 (4) CLT. 254, Hon'ble National Commission has also observed that "mere correspondence does not extend limitation and complaint was to be filed within period of 2 years from first intimation".
31. In view of the ratio of the law laid down in the above noted authorities, it is clear that no amount of correspondence can extend the limitation period, which had already commenced from the date of accrual of cause of action in the present complaints in the last quarter of the year 2014, when the complainants took over possession of their respective flats, without raising any kind of objection. No application has been filed along with the complaints seeking condonation of delay. Thus, it is evident that the complainants have not approached this Commission within two years therefrom. In such circumstances, the present complaints are hopelessly barred by limitation.
32. The next point raised by the opposite parties is that the physical possession of the flat was taken by the complainant without any protest, therefore, the complainant is ceased to be a consumer.
33. As already observed above, the complainants have already taken possession of their respective flats way back in the year 2014, without raising any kind of objection or protest. They did not raise any kind of issue at that time. Hon'ble National Commission in case T.K.A. Padmanabhan v. Abhiyan CGHS Ltd. 2016 (2) CPJ 273 Consumer Complaint No 368 of 2019 26 held in Para No.10 as follows:
"10. It is an admitted fact that petitioner had taken the physical possession of the flat on 27.02.2004, though there was delay of 11 months in giving possession on behalf of the respondent. However, the Consumer Complaint was filed on 08.08.2005, that is, about one and half years, after petitioner got possession. There is nothing on record to show that at the time of taking possession of the flat, petitioner had lodged any protest with regard to delay or took conditional possession. When petitioner had taken the possession of the flat on 27.02.2004, unconditionally and without any protest, thereafter he ceased to be a consumer. The agreement executed between the parties comes to an end. Thus, on the date when Consumer Complaint was filed, there was no privity of contract between the parties. As such, the Consumer Complaint on the face of it is not maintainable.
34. Similarly, in Revision Petition No.3338 of 2007 (Harpal Arya v. Housing Board Haryana, Estate Manager, Housing Board, Sector 6, Panchkula) decided on 04.01.2016, the Hon'ble National Commission held in Para-15 as under:
"15. Thus, from the aforesaid documents, it is manifestly clear that petitioner had executed the Hire Purchase Tenancy Agreement with the respondent and in pursuance thereof, he had also taken possession of house on 27.10.2004. Further, as per possession certificate, it is clear that petitioner had taken the possession without any pre-conditions. Now, after getting the possession, it does not lie in the mouth of the petitioner to state that house is not in a habitable condition. Once petitioner had taken the possession with open eyes and without any pre-conditions, he cease to be Consumer Complaint No 368 of 2019 27 a consumer. The Consumer Complaint was filed on 25.05.2005, that is, after about seven months of taking over of possession of the house. Therefore, on the face of it, the petitioner was not a 'consumer' at the time of filing of the complaint, since there was no privity of contract between the parties. Therefore, complaint is liable to be dismissed on this ground alone."
35. In view of the ratio of aforesaid authorities, the complainants, after taking possession of their respective flats in the year 2014 without raising any kind of objection, ceased to be the consumers of the opposite parties; because after taking physical possession of the flats, the agreement between the parties came to an end and thereafter there was no privity of contract between them.
36. Sequel to the above discussions the Consumer Complaint No.368 of 2019 filed by the complainant is hereby dismissed. Consumer Complaint No.369 of 2019
37. Similarly in Consumer Complaint No.369 of 2019 (Anup Kumari Vs. The Punjab State Federation of Cooperative House Building Society Ltd. & Anr.) the complainant was allotted Category
-IV flat vide Letter of Allocation dated 25.03.2004, Ex.C-2(colly) at tentative cost of Rs.5,28,000/- after giving the rebate of 5%. Vide letter dated 15.07.2014, Ex.C-12, the complainant was intimated that he was allotted Flat No.1679-A and the final cost of the flat was fixed as Rs.15,31,000/-. On 26.09.2014, the physical possession of the said flat was delivered to the complainant on as per Physical Possession Letter, Ex.C-12. In this complaint, the complainant has averred that the opposite parties have delayed the possession Consumer Complaint No 368 of 2019 28 despite various meetings and no interest on the deposited was given by them to the complainant. Alleging deficiency in service on the part of the opposite parties, the complainant seeks the following directions against the opposite parties:-
i) to be paid interest of Rs.9,28,299/- (@18% p.a. of Rs.3,96,709/-) on the amount received by the opposite parties as 8 quarterly instalments from the date of its deposit till the date of possession;
ii) to refund Rs.2,00,000/- towards deficiency of service;
iii) to refund the conveyance deed charges i.e. Rs.1,20,000/-
along with interest @12% p.a.;
iv) to refund the excess amount charged on account of revised/enhanced cost of the flat;
v) to pay compensation of Rs.1,00,000/- for mental agony and harassment and Rs.50,000/- towards litigation expenses; and
vi) any other additional or alternate relief which this Commission may deem fit.
38. Upon notice, opposite parties appeared and filed their written statement on the similar lines as filed in C.C. No.368 of 2019 and prayed to dismiss the complaint.
39. To prove her claim, the complainant filed her affidavit along with documents as Ex.C-1, Ex.C-2 (colly), Ex.C-3(colly), Ex.C- 4(colly), Ex.C-5(colly), Ex.C-6(colly), Ex.C-7 to Ex.C-12, Ex.C- 13(colly), Ex.C-14(colly) and Ex.C-15(colly). Consumer Complaint No 368 of 2019 29
40. On the other hand, opposite parties in support of their contentions has filed the affidavit of Rakesh Shangari, Officiating Chief Account Officer along with documents as Ex.OP-1 to Ex.OP-7.
41. Similar contentions have been raised by the learned counsel for the parties.
42. In view of the discussions held in Consumer Complaint No.368 of 2019, this complaint is also dismissed. Consumer Complaint No.370 of 2019
43. Similarly in Consumer Complaint No.370 of 2019 (Gurinder Singh Vs. The Punjab State Federation of Cooperative House Building Society Ltd. & Anr.) the complainant was allotted Category
-IV flat vide Letter of Allocation dated 24.03.2004, Ex.C-2(colly) at tentative cost of Rs.5,28,000/- after giving the rebate of 5%. Vide letter dated 15.07.2014, Ex.C-12, the complainant was intimated that he was allotted Flat No.1681-A and the final cost of the flat was fixed as Rs.15,31,000/-. On 10.11.2014, the physical possession of the said flat was delivered to the complainant on as per Physical Possession Letter, Ex.C-12. In this complaint, the complainant has averred that the opposite parties have delayed the possession despite various meetings and no interest on the deposited was given by them to the complainant. Alleging deficiency in service on the part of the opposite parties, the complainant seeks the following directions against the opposite parties:-
i) to be paid interest of Rs.8,91,853/- (@18% p.a. of Rs.3,81,134/-) on the amount received by the opposite Consumer Complaint No 368 of 2019 30 parties as 8 quarterly instalments from the date of its deposit till the date of possession;
ii) to refund Rs.2,00,000/- towards deficiency of service;
iii) to refund the conveyance deed charges i.e. Rs.1,20,000/-
along with interest @12% p.a.;
iv) to refund the excess amount charged on account of revised/enhanced cost of the flat;
v) to pay compensation of Rs.1,00,000/- for mental agony and harassment and Rs.50,000/- towards litigation expenses; and
vi) any other additional or alternate relief which this Commission may deem fit.
44. Upon notice, opposite parties appeared and filed their written statement on the similar lines as filed in C.C. No.368 of 2019 and prayed to dismiss the complaint.
45. To prove his claim, the complainant filed his affidavit along with documents as Ex.C-1, Ex.C-2 (colly), Ex.C-3(colly), Ex.C- 4(colly), Ex.C-5(colly), Ex.C-6(colly), Ex.C-7 to Ex.C-12, Ex.C- 13(colly), Ex.C-14(colly) and Ex.C-15(colly).
46. On the other hand, opposite parties in support of their contentions has filed the affidavit of Rakesh Shangari, Officiating Chief Account Officer along with documents as Ex.OP-1 to Ex.OP-7.
47. Similar contentions have been raised by the learned counsel for the parties.
48. In view of the discussions held in Consumer Complaint No.368 of 2019, this complaint is also dismissed. Consumer Complaint No 368 of 2019 31 Consumer Complaint No.371 of 2019
49. Similarly in Consumer Complaint No.371 of 2019 (Minakshi Sharma Vs. The Punjab State Federation of Cooperative House Building Society Ltd. & Anr.) the complainant was allotted Category
-II flat vide Letter of Allocation dated 24.03.2004, Ex.C-2(colly) at tentative cost of Rs.9,60,000/- by giving rebate of 5%. Vide letter dated 14.07.2014, Ex.C-12, the complainant was intimated that he was allotted Flat No.56 and the final cost of the flat was fixed as Rs.28,38,000/- and the physical possession of the said flat was delivered to the complainant. In this complaint, the complainant has averred that the opposite parties have delayed the possession despite various meetings and no interest on the deposited was given by them to the complainant. Alleging deficiency in service on the part of the opposite parties, the complainant seeks the following directions against the opposite parties:-
i) to be paid interest of Rs.10,27,399/- (@18% p.a. of Rs.7,13,449/-) on the amount received by the opposite parties as 8 quarterly instalments from the date of its deposit till the date of possession;
ii) to refund Rs.2,00,000/- towards deficiency of service;
iii) to refund the conveyance deed charges i.e. Rs.2,40,000/-
along with interest @12% p.a.;
iv) to refund the excess amount charged on account of revised/enhanced cost of the flat;
Consumer Complaint No 368 of 2019 32
v) to pay compensation of Rs.1,00,000/- for mental agony and harassment and Rs.50,000/- towards litigation expenses; and
vi) any other additional or alternate relief which this Commission may deem fit.
50. Upon notice, opposite parties appeared and filed their written statement on the similar lines as filed in C.C. No.368 of 2019 and prayed to dismiss the complaint.
51. To prove her claim, the complainant filed her affidavit along with documents as Ex.C-1, Ex.C-2 (colly), Ex.C-3(colly), Ex.C- 4(colly), Ex.C-5(colly), Ex.C-6(colly), Ex.C-7 to Ex.C-12, Ex.C- 13(colly), Ex.C-14(colly) and Ex.C-15(colly).
52. On the other hand, opposite parties in support of their contentions has filed the affidavit of Rakesh Shangari, Officiating Chief Account Officer along with documents as Ex.OP-1 to Ex.OP-7.
53. Similar contentions have been raised by the learned counsel for the parties.
54. In view of the discussions held in Consumer Complaint No.368 of 2019, this complaint is also dismissed. Consumer Complaint No.372 of 2019
55. Similarly in Consumer Complaint No.372 of 2019 (Gurdeep Singh Vs. The Punjab State Federation of Cooperative House Building Society Ltd. & Anr.) the complainant was allotted Category
-IV flat vide Letter of Allocation dated 25.03.2004, Ex.C-2(colly) at tentative cost of Rs.5,28,000/- after giving the rebate of 5%. Vide letter dated 15.07.2014, Ex.C-12, the complainant was intimated that Consumer Complaint No 368 of 2019 33 he was allotted Flat No.1628-C and the final cost of the flat was fixed as Rs.14,19,000/-. On 23.12.2014, the physical possession of the said flat was delivered to the complainant on as per Physical Possession Letter, Ex.C-12. In this complaint, the complainant has averred that the opposite parties have delayed the possession despite various meetings and no interest on the deposited was given by them to the complainant. Alleging deficiency in service on the part of the opposite parties, the complainant seeks the following directions against the opposite parties:-
i) to be paid interest of Rs.9,26,640/- (@18% p.a. of Rs.3,96,000/-) on the amount received by the opposite parties as 8 quarterly instalments from the date of its deposit till the date of possession;
ii) to refund Rs.2,00,000/- towards deficiency of service;
iii) to refund the conveyance deed charges i.e. Rs.1,20,000/-
along with interest @12% p.a.;
iv) to refund the excess amount charged on account of revised/enhanced cost of the flat;
v) to pay compensation of Rs.1,00,000/- for mental agony and harassment and Rs.50,000/- towards litigation expenses; and
vi) any other additional or alternate relief which this Commission may deem fit.
56. Upon notice, opposite parties appeared and filed their written statement on the similar lines as filed in C.C. No.368 of 2019 and prayed to dismiss the complaint.
Consumer Complaint No 368 of 2019 34
57. To prove his claim, the complainant filed his affidavit along with documents as Ex.C-1, Ex.C-2(colly), Ex.C-3(colly), Ex.C-4(colly), Ex.C-5(colly), Ex.C-6(colly), Ex.C-7 to Ex.C-12, Ex.C-13(colly), Ex.C- 14(colly) and Ex.C-15(colly).
58. On the other hand, opposite parties in support of their contentions has filed the affidavit of Rakesh Shangari, Officiating Chief Account Officer along with documents as Ex.OP-1 to Ex.OP-8.
59. Similar contentions have been raised by the learned counsel for the parties.
60. In view of the discussions held in Consumer Complaint No.368 of 2019, this complaint is also dismissed. Consumer Complaint No.373 of 2019
61. Similarly in Consumer Complaint No.373 of 2019 (Beant Kaur Vs. The Punjab State Federation of Cooperative House Building Society Ltd. & Anr.) the complainant was allotted Category -IV flat vide Letter of Allocation dated 25.03.2004, Ex.C-2(colly) at tentative cost of Rs.5,28,000/- after giving rebate of 5%. Vide letter, Ex.C-12, the complainant was intimated that he was allotted Flat No.1623-A and the final cost of the flat was fixed as Rs.15,31,000/-. On 13.08.2014, the physical possession of the said flat was delivered to the complainant on as per Physical Possession Certificate, Ex.C-12. In this complaint, the complainant has averred that the opposite parties have delayed the possession despite various meetings and no interest on the deposited was given by them to the complainant. Alleging deficiency in service on the part of the opposite parties, the Consumer Complaint No 368 of 2019 35 complainant seeks the following directions against the opposite parties:-
i) to be paid interest of Rs.9,26,640/- (@18% p.a. of Rs.3,96,000/-) on the amount received by the opposite parties as 8 quarterly instalments from the date of its deposit till the date of possession;
ii) to refund Rs.2,00,000/- towards deficiency of service;
iii) to refund the conveyance deed charges i.e. Rs.1,20,000/-
along with interest @12% p.a.;
iv) to refund the excess amount charged on account of revised/enhanced cost of the flat;
v) to pay compensation of Rs.1,00,000/- for mental agony and harassment and Rs.50,000/- towards litigation expenses; and
vi) any other additional or alternate relief which this Commission may deem fit.
62. Upon notice, opposite parties appeared and filed their written statement on the similar lines as filed in C.C. No.368 of 2019 and prayed to dismiss the complaint.
63. To prove her claim, the complainant filed her affidavit along with documents as Ex.C-1, Ex.C-2(colly), Ex.C-3(colly), Ex.C-4(colly), Ex.C-5(colly), Ex.C-6(colly), Ex.C-7 to Ex.C-12, Ex.C-13(colly), Ex.C- 14(colly) and Ex.C-15(colly).
64. On the other hand, opposite parties in support of their contentions has filed the affidavit of Rakesh Shangari, Officiating Chief Account Officer along with documents as Ex.OP-1 to Ex.OP-8. Consumer Complaint No 368 of 2019 36
65. Similar contentions have been raised by the learned counsel for the parties.
66. In view of the discussions held in Consumer Complaint No.368 of 2019, this complaint is also dismissed.
67. Arguments in these complaints were heard on 30.08.2019 and the order was reserved. The certified copies of the order be communicated to the parties, as per rules.
(RAJINDER KUMAR GOYAL) PRESIDING MEMBER (KIRAN SIBAL) MEMBER September 12,2019 parmod