State Consumer Disputes Redressal Commission
M/S Silver City Construction Limited vs Smt. Jaswant Dhaliwal on 1 January, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 449 of 2013 Date of Institution : 17.10.2013 Date of Decision : 01.01.2014 1. M/s Silver City Construction Limited, Regd. Office at House No.89, Sector-8/A, Chandigarh. 2. Managing Director (through its Manager), Silver City Construction Ltd. Regd. Office at House No.89, Sector-8/A, Chandigarh Appellants/Opposite Parties V e r s u s Smt. Jaswant Dhaliwal W/o Lt. General J.S. Dhaliwal R/o House No.8, Sector-63, Mohali. Respondent/Complainant Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. SH. DEV RAJ, MEMBER.
Argued by: Sh. Sandeep Bhardwaj, Advocate for the appellants.
Sh. Pankaj Chandgothia, Advocate for respondent.
PER DEV RAJ, MEMBER
1. This appeal is directed against the order dated 04.09.2013, rendered by the District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter to be called as the District Forum only), vide which, it allowed the complaint, filed by the complainant (respondent) and directed the Opposite Parties (appellants), as under:-
15. In the light of above observations, we are of the concerted view that the Opposite Parties are found deficient in giving proper service to the complainant. Hence, the present complaint of the Complainant deserves to succeed against the Opposite Parties, jointly and severally, and the same is allowed, qua it. The Opposite Parties are directed to:-
[a] To refund Rs.2940/- realized from the Complainant towards water & sewerage charges along with Rs.1,00,000/- on account of non-occupancy charges;
[b] To pay Rs.25,000/-on account of deficiency in service and causing mental and harassment to the Complainant;
[c] To pay Rs.10,000/- as cost of litigation;
16. The above said order shall be complied within 45 days of its receipt by the Opposite Parties; thereafter, they shall be liable for an interest @18% per annum on the amount mentioned in per sub-para [a] & [b] of para 15 above, apart from cost of litigation of Rs.10,000/-, from the date of institution of this complaint, till it is paid.
2. The facts, in brief, are that the complainant purchased Plot No.87 measuring 500 square yards from Silver City Complex, developed by the Opposite Parties, after paying sale consideration of Rs.14,77,500/-. It was stated that an agreement (Annexure C-1) was signed between the complainant and the Opposite Parties, containing various terms & conditions, relating to payment, possession, water, sewerage connection etc. It was further stated that after making full and final payment to the Opposite Parties during August, 2002 (Receipts Annexure C-2 Colly.). The complainant approached the Opposite Parties for delivery of possession and to give concurrence for joining water/sewerage pipes of the Company, but to no avail. It was further stated that despite two letters (Annexures C-3 and C-4) in this behalf, and several visits to the Opposite Parties, the Opposite Parties kept on dodging the complainant. It was further stated that the complainant was keen to construct the house, on the said plot, for her post retirement settlement, but could not do so, due to non-delivery of possession of the plot by the Opposite Parties. It was further stated that due to frustration and delaying tactics of the Opposite Parties, she helplessly decided to dispose of the said plot, and look for an alternative place for settlement. It was further stated that when the complainant approached the Opposite Parties to accord written consent required to effect resale of the plot, vide para 7 of the agreement, they (Opposite Parties) resorted to unscrupulous and exploitable designs and demanded Rs.One lac as non-occupancy charges to fleece the complainant. It was further stated that the complainant had no option but to pay Rs.1 lac, as non-occupancy charges. Besides the Opposite Parties also charged Rs.17,814/- as water/sewerage charges illegally without giving possession of the plot to the complainant (Annexure C-5 Colly.)
3. It was further stated that due to non-delivery of possession by the Opposite Parties, the complainant could not occupy the plot and, as such, the question of charging non-occupancy charges did not arise. It was further stated that non-occupancy, and water/sewerage charges were non-existent, in the terms and conditions of the agreement. It was further stated that legal notice (Annexure C-6) sent to the Opposite Parties which was not even replied. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), seeking direction to the Opposite Parties to refund Rs.1,00,000/- charged as non-occupancy charges; Rs.17,814 as water/sewerage charges; pay Rs.16 lacs on account of escalation cost of construction; Rs.1 lac as compensation for physical harassment and mental agony and Rs.30,000/- for legal expenses was filed.
4. The Opposite Parties, in their written version, took up certain preliminary objections, to the effect, that the complaint was bad for non-joinder of necessary parties as Brig. J. S. Dhaliwal was not impleaded as complainant in the complaint and the complaint required leading of voluminous evidence, and, as such, it could not be decided in summary jurisdiction. It was pleaded that the complaint deserved dismissal as the same was not verified. On merits, it was stated that the complainant did not pay full amount of Rs.14,77,500/-. It was further stated that agreement (Annexure C-1) was never executed between the complainant and the Opposite Parties and the same was false, fabricated, forged and concocted document. It was further stated that an agreement between the complainant, Brig. J. S. Dhaliwal and Opposite Party No.1 was executed, which was signed by one Col. Mohan Singh on behalf of the complainant and Brig. J. S. Dhaliwal (Annexure R-3). It was further stated that in the month of August 2002, Opposite Party No.1 vide Vasika No.3018 dated 14.8.2002 executed registered sale deed of the plot, in question, (Annexure R-1) in the name of Brig. J. S. Dhaliwal and Smt. Jawant Dhaliwal and possession was duly delivered to the complainant and Brig. J. S. Dhaliwal accordingly. It was further stated that mutation was also sanctioned in the revenue records in the name of the complainant and Brig. J. S. Dhaliwal (Annexure R-2). It was further stated that the complainant or Brig. J. S. Dhaliwal neither approached the Opposite Parties for delivery of possession of the said plot nor gave alleged concurrence for joining water/sewerage pipes with the main pipes of the Company. It was further stated that possession of the plot had already been delivered to the complainant and her husband at the time of registration of sale deed on 14.8.2002. It was further stated that the complainant failed to comply with the terms and conditions of the agreement and to pay the maintenance charges within the stipulated period, even after repeated demands, and requests, and after completion of road works, sewerage works, water works, electrical and landscaping works as per Clause 13 of the agreement (Annexure R-3). It was further stated that the Opposite Parties never resorted to delaying tactics to cause harassment or exploit the complainant. It was further stated that the complainant failed to erect the plot boundary, within one year, from the date of possession and completely failed to discharge his contractual obligation, under the agreement. It was further stated that complainant was not a genuine customer and purchased the plot, just to gain profit out of it. It was further stated that the maintenance charges were applicable from November 2007 and all the other residents are paying the same. It was further stated that the complainant failed to level the site and construct boundary wall within one year from the date of possession. However, no water or sewerage charges were charged from the complainant. It was further stated that the complainant concocted story about approaching the Opposite Parties to accord written consent for effecting the resale of plot or that she had been put to loss due to rising cost of construction. It was further stated that neither there was any deficiency, in rendering service, nor indulgence into unfair trade practice, on the part of Opposite Parties. The remaining averments, being wrong, were denied.
5. The Parties led evidence, in support of their case.
6. After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the District Forum, allowed the complaint, as stated above, in the opening para of the instant order.
7. Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties.
8. We have heard the Counsel for the parties and have gone through the evidence and record of the case, carefully.
9. The Counsel for the appellants/Opposite Parties submitted that the sale agreement dated 12.8.2002 was executed between the appellant, and Brig. J. S. Dhaliwal and Mrs. Jaswant Dhaliwal, for Plot No.87 measuring 500 Sq. Yards, cost of which was Rs.7.50 Lacs, ancillary charges of Rs.7,27,500/- and the respondent/complainant paid the full amount. It was further submitted that Brig. J. S. Dhaliwal was not impleaded as a party. Payment vide receipt (Annexure C-2) was admitted. It was further submitted that no evidence in support of letters dated 21.4.2011 and 10.3.2011 (Annexures C-3 and C-4) for possession of the plot having been sent, was produced. It was further submitted that as per Exhibit R-1, the sale deed was through Col. Mohan Singh but he was not impleaded as a party. It was further submitted that Exhibit R-3 too was signed by Col. Mohan Singh. It was further submitted that the other allottees made payments on account of water and maintenance charges as was evident from Exhibits R-10 to R-13.
10. The Counsel for the respondent/complainant submitted that in agreement (Exhibit R-3), there is no clause for charging of non-occupancy charges and the appellants/Opposite Parties did not have any legitimate right to charge the same. It was further submitted that the District Forum in paras 11 and 12 of its order rightly held that as per Annexure R-7, the Opposite Parties vide their own Resolution dated 3.7.2010 had declared water and sewerage connection charges and transfer/updating charges for different sizes of plots but failed to locate any clause in the terms and conditions of the Agreement (Annex.R-3) which empowered the Opposite Parties, to declare charging of transfer/updating charges which they preferred to levy in the year 2010 after 08 long years.
11. We have given our thoughtful consideration to the rival contentions, of the Counsel for the parties, and, the evidence, on record.
12. Admittedly, the complainant alongwith her husband purchased the plot in question and paid a total sum of Rs.14,87,000-00 as is evident from receipts (Annexure C-2), details of which are as under:-
Sr.No. Receipt No. Date Amount (Rs.)
1. 2704 06.08.2002 5,00,000-00
2. 2712 14.08.2002 9,67,000-00
3. 2702 02.08.2002 10,000-00
4. 2713 14.08.2002 10,000-00 Total 14,87,000-00 Besides, respondent/complainant also made payment of Rs.1,00,000 on account of non-occupancy charges and Rs.17,814-00 on account of water and sewerage charges (Annexure C-5, three pages).
13. The argument of the Counsel for the appellants that the complaint was not verified is devoid of truth. The complaint filed is duly supported by a sworn affidavit which is verified. The argument that the sale deed was executed through Col. Mohan Singh and he was not impleaded as a party, is also not tenable, being highly misconceived. Clearly, the sale deed (Annexure R-1) is in favour of Mrs. Jaswant Dhaliwal and Brig. J.S.Dhaliwal, and, therefore, the question of impleading Col. Mohan Singh as a party did not arise. The sale deed on behalf of appellants/Opposite Parties was through Shri Rajesh Bhasin but that would not mean that he (Rajesh Bhasin) should also have been impleaded as a party.
14. The appellants/Opposite Parties, on the one hand, in Para 2 of their written statement in the initial part submitted that no agreement was executed, but in the subsequent lines, admitted that the agreement (Annexure R-3) was executed, which was signed by one Col. Mohan Singh on behalf of the complainant and Brig. J.S.Dhaliwal.
Clearly there is no clause for charging the occupancy charges in the Agreement (Annexure R-3), and, therefore, in the absence of any such provision, to this effect, the appellants/Opposite Parties could not charge non-occupancy charges. Any subsequent resolution, that too, after a period of 8 years, could not empower them (appellants) to levy such charges. Undoubtedly, levying of such charges was an arbitrary act and the same amounted to unfair trade practice. The District Forum rightly held so, and its order, in this regard, is just and correct.
15. As per Clause 5 of the Agreement (Annexure R-3), possession of the plot was to be delivered after receipt of final payment. The respondent/complainant made full and final payment in the year 2002, as indicated in para 12 above, but no evidence has been produced by the Opposite Parties in support of their contention that they ever offered possession to the complainant. Had they done so, they would have produced the same in evidence. In the absence thereof, the contention of the complainants that they wrote to the appellants/Opposite Parties vide letters dated 10th March, 2011 and April,2011 carries weight. Appellants/Opposite Parties could also not establish that possession of plot was handed over to the complainant in the year 2002.
16. As per evidence produced vide Annexure R-2, the land was cultivable and, as such, water and sewerage maintenance charges could not be charged. Though the appellants/Opposite Parties produced in evidence Annexures R-8 and R-9 regarding layout plans of sewer and water supply, but no letter of authorities, according approval to the same has been adduced in evidence. In the absence of any cogent evidence, regarding delivery of possession, to the respondent/complainant, sanction of sewer and water supply layout plans, and connection thereof to the respondent/complainant, the appellants/Opposite Parties charged the said charges illegally. The District Forum, thus, rightly directed the appellants/Opposite Parties to refund water and sewerage charges, alongwith Rs.1 Lac on account of non-occupancy charges to the respondent/complainant.
17. However, in our considered opinion, the direction of the District Forum in Para 16 of its order that the Opposite Parties, shall be liable to pay interest @18% per annum on the amount, mentioned in Sub Paras (a) and (b) of Para 15 of the order, is on the higher side and the same needs to be reduced suitably. In our opinion, interest @9% shall be adequate and sufficient. To this extent only, the impugned order needs to be modified.
18. No other point, was urged, by the Counsel for the parties.
19. For the reasons recorded above, the appeal filed by the appellants/Opposite Parties, is partly accepted with no order as to costs, and the impugned order passed by the District Forum, is modified, to the extent, indicated hereunder;
(i) The interest, awarded by the District Forum @18% per annum, in default of non-compliance of directions in Para 15(a) and (b) of the impugned order, is reduced to 9% per annum.
(ii) The remaining directions given and reliefs awarded by the District Forum shall remain intact.
20. Certified Copies of this order be sent to the parties, free of charge.
21. The file be consigned to Record Room, after completion.
Pronounced.
1st January, 2014.
Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[DEV RAJ] MEMBER Ad STATE COMMISSION (First Appeal No.449 of 2013) Argued by: Sh.
Sandeep Bhardwaj, Advocate for the appellants.
Sh. Pankaj Chandgothia, Advocate for respondent.
Dated the 1st day of January 2014 ORDER Vide our detailed order of the even date, recorded separately, the appeal has been partly accepted, with no order as to costs. The order of the District Forum has been modified.
(DEV RAJ) MEMBER (JUSTICE SHAM SUNDER (RETD.)) PRESIDENT Ad