State Consumer Disputes Redressal Commission
1. Bubbly Singh vs 1. Ansal Lotus Melange Projects Pvt. ... on 1 May, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Complaint Case No. : 08 of 2013 Date of Institution : 18.02.2013 Date of Decision : 01.05.2013 1. Bubbly Singh wife of Sr. Madanjit Singh R/o Schkoon, Kanda Road, Dharampur. 2. Sr. Madanjit Singh, S/o Late Col. Mahinder Singh, R/o Schkoon, Kanda Road, Dharampur. Complainants V e r s u s 1. Ansal Lotus Melange Projects Pvt. Ltd., through its Director/Authorized Representative, Regd. Office: 1/18B, Asaf Ali Road, New Delhi-110002. 2. Ansal Lotus Melange Projects Pvt. Ltd., through its Manager/Authorized Representative, Corp. Office SCO 183-184, Sector 9-C, Madhya Marg, Chandigarh .... Opposite Parties Complaint under Section 17 of the Consumer Protection Act, 1986. BEFORE:JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MRS. NEENA SANDHU, MEMBER
Argued by: Sh. Sandeep Bhardwaj, Advocate for the complainants.
Sh.
Vikas Chatrath, Advocate for the Opposite Parties.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT.
The facts, in brief, are that the Opposite Parties, invited applications for the allotment of residential apartments, in their project, under the name and style Orchard County, Mohali, Punjab.
The complainants wanted to get a residential house, in the tricity, and, as such, approached the Opposite Parties, for purchasing an apartment, for their residence. The Opposite Parties mentioned the specifications of apartment, and promised to allot and hand over the physical possession thereof, as per those specifications. The complainants, thus, agreed to purchase the same. The complainants paid an amount of Rs.4,20,000/-, towards 10% of the basic sale price of apartment, at the time of booking. Accordingly, apartment no.702, 3BR, Tower-3, 7th Floor, was allotted, in favour of the complainants, vide allotment letter, copy whereof is Annexure C-2. Copy of the specifications of apartment is Annexure C-1. The basic price of apartment was Rs.41,67,450/-. Initially, the Opposite Parties did not give rebate, as the complainants had opted for the construction linked payment schedule/plan. It was stated that, in the allotment letter, under the summary of dues, electric connection charges, fire fighting safety measure charges, interest free maintenance security deposit, registration & stamp duty charges, and any other charges, were payable, at the time of delivery of legal physical possession of the residential apartment. It was further stated that all the payments were made by the complainants, as and when, demanded by the Opposite Parties, according to the stage of construction.
2. It was further stated that when the complainants approached the Opposite Parties, for making the payment of installment, in the month of August 2008, they were informed that they would get 12% rebate, on the price of apartment, if they paid the remaining amount, at once, to which they agreed. It was further stated that a schedule was handed over to them, mentioning therein, the due amount/net down payment payable, as Rs.21,63,026/-. It was further stated that it was informed that the complainants had to make a payment of Rs.2,08,373/-, at the time of delivery of possession of apartment. It was further stated that, on 03.09.2008, the amount of Rs.21,63,026/-, was paid by the complainants, to the Opposite Parties, vide receipt Annexure C-7. It was further stated that, after receiving the major consideration, from the complainants, the Opposite Parties agreed/promised to hand over the physical possession of apartment, in question, till December 2010. It was further stated that the complainants signed the terms and conditions of allotment letter, in which it was specifically mentioned that the possession of apartment, in question, would be delivered, within a reasonable period. The complainants kept on approaching the Opposite Parties, and also made telephone calls, in the month of December 2010, but the possession of apartment, was not delivered to them, by the Opposite Parties, as per the terms and conditions contained, in the allotment letter.
3. It was further stated that since, the Opposite Parties had not handed over the legal physical possession of apartment, within reasonable period i.e. within 6 months or a year of its allotment, to the complainants, they (Opposite Parties) were asked to inform the actual date of delivery of possession, but they did not pay any heed. It was further stated that, on 18.07.2012, the complainants visited the office of the Opposite Parties, upon which, they were informed that they had to make payment of Rs.3,92,569/- to them. A copy of the statement of account was handed over to the complainants. It was further stated that, on perusal of the statement of account, when the complainants found that the demand made by the Opposite Parties, was more than the due amount, they (Opposite Parties), were informed, with regard to the same. It was further stated that the complainants did not pay the amount, as per the statement of account. It was further stated that the complainants were told to visit the office of the Opposite Parties, on 14.08.2012. When the complainants approached them, they were told to pay Rs.3,41,097/-, which included a sum of Rs.2,08,373/-, which was to be paid, at the time of delivery of physical possession of apartment, Rs.1,22,500/-, for the increased area of apartment, alongwith Rs.10,224/-, as service tax. It was further stated that this amount was paid, by the complainants, as demanded by the Opposite Parties.
4. It was further stated that the Opposite Parties were asked with regard to the delivery of possession of apartment, in question, whereupon, they told the complainants, that they shall issue a separate letter, for the same to them (complainants). It was further stated that, after receiving the payment, aforesaid, the complainants were handed over a letter dated 14.08.2012, alongwith statement of account, in which an amount of Rs.1,41,897/-, was shown as due towards the complainants. It was further stated that after careful perusal of the statement of account, it was revealed that an amount of Rs.1,19,470/- had been shown as interest due, on the delayed payments. It was further stated that the Opposite Parties had accepted the payment of Rs.21,63,026/-, and no interest due, on the delayed payments, had ever been demanded, in the schedule of payment, handed over to the complainants, as also in the statement of account, and, rather, they were given rebate to the tune of 12% of the total cost of apartment. It was further stated that the demand of Rs.26,000/-, was also shown as interest free maintenance and security deposit. It was further stated that the Opposite Parties demanded the amount, against the terms and conditions of the allotment letter Annexure C-2.
5. It was further stated that the completion certificate was not obtained by the Opposite Parties, from the Competent Authority, in relation to the project, in question. It was further stated that without the completion certificate, having been issued by the Competent Authority, the offer of possession of apartment, was meaningless. It was further stated that after receipt of the entire amount, physical possession of apartment, was not delivered to the complainants, by the Opposite Parties. 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 complainants, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to deliver the possession of apartment, in question, immediately, with the facilities and specifications, as promised by them, alongwith completion certificate and occupation certificate, without charging any penalties; pay interest @24% P.A., on the amount, already deposited, till the date of delivery of physical possession of apartment; pay interest @24% P.A., on the amount of Rs.1,22,500/-, from the date of deposit, till realization; pay an amount of Rs. 2,40,000/- spent by them (complainants), towards their visit to India, for taking over the physical possession of apartment, in February 2011 and May 2011; compensation, in the sum of Rs.2 lacs, for mental agony and physical harassment; and cost of litigation, to the tune of Rs.50,000/-.
6. The Opposite Parties, in their joint written version, pleaded that the complainants did not fall within the definition of consumers, as they being NRIs, purchased the apartment, for further sale of the same, with a commercial angle. It was stated that this Commission, has no territorial Jurisdiction to entertain and decide the complaint, as the parties, mutually agreed, by signing the contract/allotment letter, that in case of any dispute, only the Courts at Delhi, shall have the Jurisdiction to entertain and decide the same. It was admitted that the complainants applied for the allotment of residential apartment, mentioned in the complaint, to them. It was also admitted that the amount, as mentioned, in the complaint, was paid by the complainants. It was, however, stated that the complainants had opted for the payment, in one go, after availing of 12% rebate, on the price of apartment. It was further stated that, as per the said settlement, the payment of Rs.21,63,026/-, was to be made by the complainants, on or before 14.05.2008. However, they made payment, on 03.09.2008, after a delay of 112 days, which fact was apparent, from the statement of account. It was further stated that, on account of delayed payment, a sum of Rs.1,19,470/-, as interest, was charged from the complainants. It was denied that the Opposite Parties, agreed to hand over the possession of apartment, by December 2010. It was further stated that, as per Clause 11 of the allotment letter, the possession was to be delivered within a reasonable period, from the date of issuance of the same (allotment letter). It was further stated that, as such, time/period, was not made the essence of contract. It was further stated that the demand of Rs.3,41,097/-, included a sum of Rs.2,08,373/-, which was to be paid, at the time of delivery of physical possession of apartment, Rs.1,22,500/-, for the increased area of apartment, alongwith Rs.10,224/-, as service tax. It was further stated that the possession was offered to the complainants, as far back as on 19.03.2012, but they did not obtain the same. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
7. In the rejoinder, filed by the complainants, they reasserted all the averments, contained in the complaint, and repudiated those, contained in the written version of the Opposite Parties.
8. Complainant no.2, in support of the averments, contained in the complaint, submitted his own affidavit, by way of evidence, alongwith which, a number of documents were attached.
9. The Opposite Parties, in support of their case, submitted the affidavit of Amit Raina, their authorized signatory, by way of evidence, alongwith which, a number of documents were attached.
10. We have heard the Counsel for the Parties, and, have gone through the evidence and record of the case, carefully.
11. The first question, that falls for consideration, is, as to whether, this Commission has got territorial Jurisdiction to entertain and decide the complaint or not. According to Section 17 of the Act, a complaint can be filed at a place, where a part of cause of action, wholly or in part, arose. In paragraph number 2 of the complaint, it was, in clear-cut terms, stated by the complainants, that the allotment letter was issued at Chandigarh, the consideration towards the residential apartment, in question, was paid at Chandigarh, and, as such, this Commission has got territorial Jurisdiction to entertain and decide the complaint. In paragraph number 2, in the written version/reply, it was stated by the Opposite Parties, that the averments, made in paragraph number 2 of the complaint, by the complainants, that this Commission has got territorial Jurisdiction to entertain and decide the complaint, were wrong and denied, being incorrect. It was further stated, in paragraph number 2 of the written version/reply, that the complainants be put to strict proof, with regard to their averments, mentioned in the complaint. It may be stated here, that in paragraph number 2 of the written version/reply, it was not stated by the Opposite Parties, that the allotment letter was not issued, to the complainants, at Chandigarh, and that the consideration towards the residential apartment, was not paid at Chandigarh, by the complainants. It means that the facts, pleaded by the complainants, with regard to the issuance of allotment letter, at Chandigarh, and the payment of consideration, at Chandigarh, were deemed to be admitted, by the Opposite Parties, by not specifically denying the same. Since, a part of cause of action, arose to the complainants, at Chandigarh, this Commission has got territorial Jurisdiction, to entertain and decide the complaint. The submission of the Counsel for the Opposite Parties, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.
12. Reliance, no doubt, was placed by the Counsel for the Opposite Parties, on Clause 39 of the allotment letter, which reads as under:-
THAT it is agreed that Courts at Delhi alone shall have Jurisdiction for adjudication of all matters arising out or in connection with this agreement.
13. By placing reliance, on the afore-extracted Clause, the Counsel for the Opposite Parties, submitted that the Parties, by mutual agreement, excluded the Jurisdiction of all other Courts, except the Courts at Delhi. No doubt, the apartment, in question, is situated at Mohali, which falls in the State of Punjab. All the provisions of the Code of Civil Procedure are not applicable, except those, mentioned in Section 13(4) of the Act, to the proceedings, in a Consumer Complaint, filed under the Act. For determining the territorial Jurisdiction, to entertain and decide the complaint, this Commission is bound by the provisions of Section 17 of the Act. In Associated Road Carriers Ltd., Vs. Kamlender Kashyap & Ors., I (2008) CPJ 404 (NC), the principle of law, laid down, by the National Consumer Disputes Redressal Commission, New Delhi, 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 Sections 11/17 of the Act and the provisions of Sections 15 to 20 of the Civil Procedure Code, regarding the place of Jurisdiction. In the instant case, a part of cause of action, arose to the complainants, within the territorial Jurisdiction of this Commission, at Chandigarh.
In Ethiopian Airlines Vs Ganesh Narain Saboo, IV (2011) CPJ 43 (SC) = VII(2011) SLT 371, the principle of law, laid down, was to the effect, that the restriction of Jurisdiction to a particular Court, need not be given any importance in the circumstances of the case. In Cosmos Infra Engineering India Ltd. Vs Sameer Saksena & another I (2013) CPJ 31 (NC) and Radiant Infosystem Pvt. Ltd. & Others Vs D.Adhilakshmi & Anr I(2013) CPJ 169 (NC), the agreements were executed, between the Parties, incorporating therein, a condition, excluding the Jurisdiction of any other Court/Forum, in case of dispute, arising under the same, and limiting the Jurisdiction to the Courts/Forums at Delhi, and Hyderabad. The National Consumer Disputes Redressal Commission, New Delhi, in the aforesaid cases, held that such a condition, incorporated in the agreements, executed between the Parties, excluding the Jurisdiction of a particular Court/Forum, and limiting the Jurisdiction to a particular Court/Forum, could not be given any importance, and the complaint could be filed, at a place, where a part of cause of action arose, according to Sections 11/17 of the Act. The principle of law, laid down, in the aforesaid cases, is fully applicable to the instant case. It may also be stated here, that, even if, it is assumed for the sake of arguments, that the complainants had agreed to the terms and conditions of allotment letter, limiting the Jurisdiction to the Courts at Delhi, the same could not exclude the Jurisdiction of this Commission, at Chandigarh, where a part of cause of action accrued to them (complainants), to file the complaint. If, by mutual agreement, the Parties exclude the Jurisdiction of a particular Court/Forum, where a cause of action arose, then that agreement could be said to be, in violation of the provisions of Sections 11/17 of the Act. Under these circumstances Clause 39 of the allotment letter, being in breach of Section 17 of the Act, could not operate. No help, therefore, can be drawn, by the Counsel for the Opposite Parties, from Clause 39 of the allotment letter, referred to above. The submission of the Counsel for the Opposite Parties, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.
14. The Counsel for the Opposite Parties, placed reliance on A .B.C. Laminart Pvt. Ltd. Vs. A.P. Agencies, Salem, Civil Appeal No.2682 of 1982, decided on 13.03.1999, in support of his contention that since the parties, by mutual agreement, excluded the Jurisdiction of any other Court/Forum, in case of dispute, arising under the same, and limited the Jurisdiction to the Courts/Forums at Delhi, the complaint could not be filed, before this Commission, by the complainants. It may be stated here that, in A.B.C. Laminart Pvt. Ltd. `s case (supra), the provisions of Section 20(c) of the Civil Procedure Code 1908 (amended up-to-date), fell for interpretation, before the Hon`ble Supreme Court. It was, in pursuance of the interpretation of the provisions of Section 20(c) of the Civil Procedure Code 1908 (amended up-to-date), that the Supreme Court, came to the conclusion that, if, by way of mutual agreement, the parties agreed to confer Jurisdiction, on one of the two Courts, having Jurisdiction, to entertain and decide the suit, then such agreement could be said to be legal and valid. There is, no dispute, with regard to the proposition of law, laid down, in the aforesaid case. However, as stated above, all the provisions of the Code of Civil Procedure are not applicable, to the disputes, before the Consumer Foras. Only the provisions of Section 13(4) of the Act, are applicable, to the disputes before the Consumer Foras. Under these circumstances, no help, therefore, can be drawn, by the Counsel for the Opposite Parties, from the principle of law, laid down, in the aforesaid authority. The submission of the Counsel for the Opposite Parties, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.
15. The next question, that falls for consideration, is, as to whether, the complainants fell within the definition of Consumers or not. No doubt, the complainants are NRIs. They applied for the allotment of residential apartment, which was allotted to them. In the complaint, as also, in the rejoinder, the complainants specifically stated that they purchased the said residential apartment, for the purpose of their residence. The mere fact that the complainants are NRIs, does not lead to the presumption, that they purchased the residential apartment, in question, with a view to sell the same, as and when, there was escalation, in the prices, to earn huge profits. The Opposite Parties, failed to produce, on record, any evidence that the complainants were property dealers or they purchased the residential apartment, by way of investment, with a view to sell the same, in the event of escalation of prices, in real estate. Under these circumstances, the submission of the Counsel for the Opposite Parties, that the Complainants did not fall within the definition of Consumers, being devoid of merit, must fail, and the same stands rejected.
16. The next question, that falls for consideration, is, as to whether, the demand of amount of Rs.1,22,500/-, for the increased area of apartment, alongwith Rs.10,224/-, as service tax and Rs.1,19,470/-as interest, on account of the delayed payment of Rs.21,63,026/-, was illegal. It may be stated here, that there is, no dispute, with regard to the factum, that, as per the terms and conditions of allotment letter, in case of increase in area of the residential apartment(s), the Opposite Parties could charge the amount for the same. Similarly, when one time settlement, for payment of the amount in one go was made, between the parties, and the Opposite Parties agreed to pay rebate of 12% on the price of apartment, it was required of the complainants, to pay the said amount on 14.05.2008. However, they paid the amount of Rs.21,63,026/-, on 03.09.2008. There was, thus, a delay of 112 days, in making the payment. The Opposite Parties, were, thus, well within their right, to charge interest of Rs.1,19,470/-, for the delayed payment. The Opposite Parties were, thus, well within their right, to charge Rs.1,22,500/-, for the increased area, of apartment, alongwith Rs.10,224/-, as service tax and interest aforesaid for delayed payment. The submission of the Counsel for the complainants, that this amount was illegally demanded by the Opposite Parties, therefore, being devoid of merit, must fail, and the same stands rejected.
17. The legal physical possession of apartment was to be delivered, within a reasonable period, from the date of allotment, to the complainants. Reasonable period could be said to be, at the most, two years, and not beyond that. Admittedly, the legal physical possession of apartment was not offered, or delivered to the complainants, by the Opposite Parties, within a period of two years, from the date of allotment of the same (apartment) in the year 2008. Annexure R-2 is the letter dated 19.03.2012, vide which, offer of possession of the residential unit was made to the complainants. It was only a paper possession. It is evident, from Annexure R-1, the letter dated 07.03.2013, that the Executive Officer, Nagar Council, Kharar, only gave partial completion certificate of the project, subject to the fulfillment of certain conditions, mentioned therein. It is not known, as to whether, those terms and conditions were fulfilled, by the Opposite Parties or not. The allotment letter was issued, by the Opposite Parties, on 10.03.2008. The legal physical possession of residential apartment, at the most, could be delivered to the complainants, by 10.03.2010. Even, by March 2012, when the offer of possession was made, to the complainants, only partial completion certificate of the project had been issued, in favour of the Opposite Parties, by the Competent Authority. By not offering the legal physical possession of apartment, after receipt of the completion certificate and occupation certificate, within a reasonable period of 2 years, from the date of allotment of the same (residential apartment), the Opposite Parties were not only deficient, in rendering service, but also indulged into unfair trade practice.
18. A lot of mental agony and physical harassment was caused to the complainants, on account of non-delivery of the legal physical possession of the residential apartment, to them, by the Opposite Parties, within the reasonable period of 2 years, from the date of allotment. The Opposite Parties, used the hard earned money, deposited by the complainants, for a sufficient long time, without handing over the legal physical possession of apartment, in question, in favour of the complainants. For tremendous mental agony and physical harassment, which was caused to the complainants, by not delivering the legal physical possession of residential apartment, by the promised date, they are entitled to compensation, in the sum of Rs.1.5 lacs.
19. No other point, was urged, by the Counsel for the parties.
20. For the reasons recorded above, the complaint is partly accepted, with costs, directing the Opposite Parties, in the following manner:_
(i). To handover the legal physical possession of residential apartment, in question, to the complainants, with all the facilities and specifications, as promised, after receipt of completion certificate and occupation certificate, from the Competent Authority, within a period of three months, from the date of receipt of a certified copy of this order, on payment of the legally due Charges/penalties by them (complainants), demand whereof has already been raised by the Opposite Parties.
(ii). To pay compensation, in the sum of Rs.1.5 lacs, to the complainants, for causing mental agony and physical harassment to them, as also for deficiency, in rendering service.
(iii). To pay cost of litigation, to the tune of Rs.20,000/-, to the complainants.
(iv). The amount of compensation, mentioned in Clause (ii), shall be paid, by the Opposite Parties, within a period of 3 months, from the date of receipt of a certified copy of the order, failing which, the same shall carry interest @12% P.A., from the date of filing the complaint, till realization, besides payment of cost of litigation and compliance of the other directions, in Clause (i) of paragraph number 20 above.
21. Certified copies of this order be sent to the parties, free of charge.
22. The file be consigned to Record Room, after completion Pronounced.
May 1, 2013 Sd/-
[JUSTICE SHAM SUNDER(RETD.)] PRESIDENT Sd/-
[NEENA SANDHU] MEMBER Rg