National Consumer Disputes Redressal
The Manager, Mapsko Builders Pvt. Ltd., vs Mrs. Sunil Dahiya W/O Anup Singh Dahiya, on 5 August, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL
COMMISSION
NEW DELHI
REVISION PETITION NO. 3479 OF 2011
(From order dated 25.07.2011 in First Appeal No.1001 of 2011 of State Consumer Disputes
Redressal Commission, Haryana)
1. The Manager, Mapsko Builders
Pvt. Ltd.,
52, North Avenu Road,
Punjabi Bagh West,
New Delhi-26.
2. The Site Manager/Sale
Executive,
Mapsko
Builders Pvt. Ltd. Mapsko
City
Homes, Sector-27, Sonepat
through Sh. Gagan Chawla.
...Petitioners
Versus
Mrs. Sunil Dahiya W/o Anup
Singh Dahiya,
R/o H. No. 3239, Sector-15,
Sonepat, Haryana
.... Respondent
BEFORE:
HONBLE MR. JUSTICE V.B. GUPTA,
PRESIDING MEMBER
HONBLE MRS. REKHA GUPTA, MEMBER
For the Petitioners : Mr. Himanshu
Gupta, Advocate
For the Respondent : Mr. Ashim Shridhar, Advocate
Pronounced on: 5th August,
2013
ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER Aggrieved by impugned order dated 25.07.2011 passed by State Consumer Disputes Redressal Commission, Haryana, Panchkula (for short, State Commission),petitioners have filed the present revision petition.
2. Brief facts of this case are that respondent/ complainant had booked a residential independent ground floor in Mapsko City Home project of the petitioners located at Sector-27,Sonepat and had paid a sum of Rs.1,50,000/-on 2.2.2010 vide receipt no.4689 and further a sum of Rs.1,50,000/- on 3.4.2010 vide receipt no.5162. Despite the above said part payment of her residential, neither the petitioners have allotted the residential independent ground floor nor they have started construction of the unit in question. Being harassed at the hands of the petitioners, respondent has filed a complaint before the District Forum.
3. The plea of the petitioners was that respondent has failed to make the payments of the house as per the provisional allotment letter dated 30.1.2010. Hence, taking into account the act and conduct of the respondent in not paying the scheduled amount of the house, provisional allotment letter was cancelled and earnest money of the respondent was forfeited.
4. District Consumer Disputes Redressal Forum, Sonepat (for short, District Forum), vide order dated 28.6.2011 allowed the complaint of respondent.
5. Being aggrieved by the order of District Forum, petitioners filed an appeal before the State Commission which was dismissed in limini alongwith cost of Rs.10,000/-.
6. Now, petitioners have filed the present petition.
7. We have heard learned counsel for the parties and gone through the record.
8. It has been contended by learned counsel for the petitioners that as per agreed terms and conditions contained in the application for registration of provisional allotment dated 30.1.2010, the respondent was liable to pay Rs.30% of the basic sale price + 50% of EDC and IDC within 90 days of booking/at the time of allotment. This amount comes to Rs.5,26,512/-. However, the respondent has paid only Rs.3 lacs till date and has not paid the remaining amount at the relevant stage of payment when the same became due. Thus, it is in these circumstances, when the respondent herself has defaulted in making the due and agreed payments in time, that she has not been allotted the residential unit in question. The mere taking of the booking amount as well as additional instalment of the house does not entitle the respondent to the allotment of the residential unit, when there is failure on her part to make the 3rd payment of 10% of BSP + 50% of the EDC & IDC, whereafter only she would have been allotted the residential unit. Since, respondent herself has not deposited 30% of the initial amount, petitioners cancelled the allotment of the respondent vide letter dated 17.12.2010. Both the Fora below have failed to notice these aspects and as such impugned order passed by the State Commission is liable to be set aside.
9. On the other hand, it has been contended by learned counsel for the respondent that as per concurrent findings of the Fora below, no construction of the project has been started by the petitioners within the specified period, as such there is no infirmity in the impugned order passed by the State Commission.
10. District Forum while allowing the complaint in its order has held;
In the written statement and affidavit, the respondent no.2 has admitted that the complainant remitted payment of Rs.1,50,000/- each in favour of the respondents. It was further agreed that the basic sale price of the house is Rs.15,35,040/-.Further in para no.4, page 3, the respondent no.2 has submitted that at present Rs.2,80,789/- is outstanding. Meaning thereby, the complainant has been making the payment of installments regularly, but despite that as per the respondent no.2, finding no other way, the respondents on 17.12.2010 has sent a letter for cancellation of provisional letter of allotment and forfeiture of earnest money. In our view, the action taken by the respondents against the complainant is totally wrong, illegal, arbitrary, unjustified and against the principles of law.
The respondent no. 2 in the entire written statement and affidavit has not uttered even a single word about the construction activities and about the development at the site. In our view, when there is no construction activities at the site or there is no development at the site, the respondents have no right to foist their wrong upon the complainant. In our view, definitely the complainant is entitled to get interest from the respondents on her deposited amount which the respondents are utilizing without providing her any facilities or services. Accordingly, it is directed to the respondents to pay interest at the rate of 09% per annum on the amount deposited by the complainant with the respondents from the date of its deposit till the possession of the floor is handed over to the complainant.
Further, in our view, the respondents wrongly and illegally issued the letter dated 17.12.2010 to the complainant and the respondents are directed to withdraw the same. In our view, the complainant has been able to prove the deficiency in the service of the respondents and the respondents are directed to allot the residential independent ground floor in Mapsko City Home in Block ME 73 to 81 and 62 to 70 in East to the complainant. It is also directed to the respondents to accept the instalments without any interest, penalty or surcharge form the complainant i.e after start of the construction activities. It is also directed to the respondents to inform the complainant about the delivery of the possession of residential independent ground floor so that she could arrange the money for its deposit with the respondents. Since, the complainant has been able to prove the deficiency in service on the part of the respondents, the respondents are directed to compensate the complainant to the tune of Rs.10,000/-(Rupees Ten Thousand) for rendering deficient services, for unnecessary harassment and Rs.5,000/-(Rupees Five Thousand) under the head of litigation expenses. The present complaint stands allowed and the respondents are directed to make the compliance of this order within one month from the date of pronouncement of this order.
11. The State Commission while affirming the decision of the District Forum, in its impugned order observed;
On our asking, it is not disputed by the learned counsel for the appellant that despite of taking the booking amount as well as additional insatllment of the house, complainant has not been allotted the residential unit in question. It is further not disputed that no construction of the alleged project has been started by the appellant till date. The plea of the appellant that 30% payment has not been made by the complainant, therefore, construction work of the flat in question could not be started, is not a ground to forfeit the earnest money of the complainant. It is not disputed that builders always project their case favouring them instead of ever bothered for the interest of allottees. The builder used the hard earned money of the investors and thereafter acted in an arbitrary manner, so as to build up pressure upon the complainant to part with their hard earned money without performing their part of contract by raising construction of the flats. We are, therefore, of the view that there is great deficiency on the part of the appellants/ opposite parties in not raising the construction, rather impressing upon the complainant to pay the instalments in time without carrying the construction work of the flat in question. We, therefore, dismiss this appeal with the costs of Rs.10,000/- in limini.
However, complainant would be entitled to adjust this amount of cost, while making the balance payment of his house to the appellants.
12. Petitioners have placed on record Instalment Payment Plan showing as to what stage what instalment amount has to be paid by the respondent. However, Instalment Payment Plan is absolutely silent as to by which date the possession of the flat will be handed over to the respondent.
13. Petitioners have not placed on record the agreement executed between the parties. However, it has placed on record copy of Floor Buyers Agreement(page 56 to 65 of the paper book) of some other purchaser. As per clause 14-a of the Floor Buyers Agreement;
Promoter shall endeavour to complete the construction of the said Floor within a period of 18 months from the date of signing of this Agreement with the Buyer or within an extended period of six months, subject to force majeure conditions as mentioned in Clause (b) hereunder or subject to any other reasons beyond the control of the Promoter.
14. There is nothing on record to show as to what was the status of the construction when respondent has filed the complaint before the District Forum.
15. Both the Fora below have given a categorical finding that No construction has started yet.
16. State Commission, vide impugned order dated 25.7.2011 in this regard has observed It is further not disputed that no construction of the alleged project has been started by the appellant till date.
17. Petitioners in this case having accepted substantial amount of money from the respondent in February/ April,2010 but had not started any construction till 25.7.2011(date of decision of the State Commission). This conduct of the petitioners on the face of it amounts to unfair trade practice.
18. In Lalit Kumar Gupta & Ors. Vs. DLF Universal Ltd.(First Appeal No.88 of 1999 and 345 of 2001) decided on 6.5.2002,this Commission has laid down;
That there has been a delay in delivery in handing over the possession of the Town House which is a deficiency in service within the definition of this word as per CPA, 1986.
19. Present revision petition has been filed under Section 21(b) of the Consumer Protection Act, 1986. It is well settled that the powers of this Commission as a Revisional Court are very limited and have to be exercised only, if there is some prima facie jurisdictional error in the impugned order.
20. Honble Supreme Court in Mudigonda Chandra Mouli Sastry vs. Bhimanepalli Bikshalu and others,(AIR 1999 (SC) 3095) has observed;
It was also not open to the High Court in exercise of its revisional jurisdiction to have indulged in a reassessment of evidence and thereby interfered with the finding of the facts recorded by the two Courts below.
21. Honble Supreme Court, in Rubi (Chandra) Dutta vs. United India Insurance Co. 2011 (3) Scale 654 observed that;
Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view that what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different(and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken, by setting aside the concurrent finding of two fora.
22. Petitioners/builder in the present case wants to have the cake and eat it too, as admittedly it has received substantial amount of money of the flat. Thus, petitioners being the builders are enjoying the substantial amount of money of the flat paid by the respondent. On the other hand, respondent after having paid substantial amount of money of the flat to the petitioners is still without any roof and also does not know as to when she will get the same.
23. Thus, no jurisdiction or legal error has been shown to us to call for interference in the exercise of power under section 21
(b) of the Act, since, State Commission has given cogent reasons in its order, which does not call for any interference nor it suffer from any infirmity or revisional exercise of jurisdiction.
24. In Ravinder Kaur Vs. Ashok Kumar, AIR 2004 SC 904, Apex Court observed ;
Courts of law should be careful enough to see through such diabolical plans of the judgment debtor to deny the decree holders the fruits of the decree obtained by them.
These type of errors on the part of the judicial forum only encourage frivolous and cantankerous litigations causing laws delay and bringing bad name to the judicial system.
25. It is well settled that no leniency should be shown to such type of litigants who in order to cover up their own fault and negligence, goes on filing meritless petitions in different foras. Equity demands that such unscrupulous litigants whose only aim and object is to deprive the opposite party of the fruits of the decree must be dealt with heavy hands. Unscrupulous builders like petitioners should not be spared who after taking substantial cost of the flat do not perform their part of obligations. A strong message is required to be sent to such type of builders that this Commission is not helpless in these type of matters.
26. Now question arises for consideration is as to what should be the quantum of costs which should be imposed upon the petitioner for dragging the respondent upto this fora. It is not that every order passed by the judicial fora is to be challenged by the litigants even if the same are based on sound reasonings.
27. Apex Court in Ramrameshwari Devi and Ors. Vs. Nirmala Devi and Ors, Civil Appeal Nos.4912-4913 of 2011 decided on July 4, 2011 has observed ;
45. We are clearly of the view that unless we ensure that wrong doers are denied profit or undue benefit from the frivolous litigation, it would be difficult to control frivolous and uncalled for litigations.
In order to curb uncalled for and frivolous litigation, the Courts have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that courts otherwise scarce and valuable time is consumed or more appropriately wasted in a large number of uncalled for cases.
Apex Court Further observed;
It is also a matter of common experience that to achieve clandestine objects, false pleas are often taken and forged documents are filed indiscriminately in our courts because they have hardly any apprehension of being prosecuted for perjury by the courts or even pay heavy costs. In Swaran Singh Vs. State of Punjab (2000) 5 SCC 668 this court was constrained to observe that perjury has become a way of life in our courts.
49. It is a typical example how a litigation proceeds and continues and in the end there is a profit for the wrongdoers.
50. Learned Amicus articulated common mans general impression about litigation in following words:
Make any false averment, conceal any fact, raise any plea, produce any false document, deny any genuine document, it will successfully stall the litigation, and in any case, delay the matter endlessly. The other party will be coerced into a settlement which will be profitable for me and the probability of the court ordering prosecution for perjury is less than that of meeting with an accident while crossing the road.
28. In our opinion, the present petition is nothing but a gross abuse of process of law and the revision petition is totally meritless and frivolous, which is required to be dismissed with punitive cost. Accordingly, we dismiss the present petition with punitive cost of Rs.75,000/-(Rupees Seventy Five Thousand only).
29. Out of the cost imposed upon the petitioners, Rs.
50,000/-(Rupees Fifty Thousand only) be paid to the respondent by way of demand draft in her name. Remaining cost of Rs.25,000/-(Rupees Twenty Five Thousand only) be deposited by way of demand draft in the name of Consumer Legal Aid Account of this Commission, within one month from today.
30. In case, petitioners fail to deposit the aforesaid costs within the prescribed period, then it shall also be liable to pay interest @ 9% p.a., till realization.
31. Cost awarded to the respondent shall be paid only after expiry of the period of appeal or revision preferred, if any.
32. List on 13th September,2013 for compliance.
.....J (V.B. GUPTA) (PRESIDING MEMBER) (REKHA GUPTA) MEMBER SSB