State Consumer Disputes Redressal Commission
Municipal Corporation, Fazilka vs Savita Kalra on 25 October, 2018
Daily Order FIRST ADDITIONAL BENCH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB SECTOR 37-A, DAKSHIN MARG, CHANDIGARH. (1) First Appeal No.286 of 2018 Date of Institution : 15.05.2018 Order Reserved on: 12.10.2018 Date of Decision : 25.10.2018 Municipal Council, Fazilka through its Executive Officer. ..Appellant/Opposite party Versus Savita Kaira widow of Raj Kishor Kalra resident of Basit Hazoor Singh Fazilka Tehsil and District Fazilka .....Respondent/Complainant First Appeal against order dated 12.01.2018 passed by the District Consumer Disputes Redressal Forum, Fazilka Quorum:- Shri J. S. Klar, Presiding Judicial Member
Smt.Kiran Sibal, Member Present:-
For the appellant : Sh.H.S Jakhal, Advocate For the respondent : Sh.S.K. Aneja, Advocate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . AND (2) First Appeal No.287 of 2018 Date of Institution: 15.05.2018 Order Reserved on:12.10.2018 Date of Decision : 25.10.2018 Municipal Council, Fazilka through its Executive Officer .....Appellant/Opposite party Versus
Sumit Kumar Jhamb son of Sh. Brij Mohan Jhamb of Civil Lines Fazilka now at 49-C, Bhai Randhir Singh Nagar, Ludhiana.
..Respondent/Complainant First Appeal against order dated 05.01.2018 passed by the District Consumer Disputes Redressal Forum, Ferozepur Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Smt.Kiran Sibal, Member.
Present:-
For the appellant : Sh.H.S Jakhal, Advocate For the respondent : Sh.Ramandeep Singh, Advocate
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J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
Since common question of facts and law are involved in both above referred two appeals, as such, they are taken up together to dispose of them conveniently. Appeal no. 286 of 2018 has been filed by appellant Municipal Council Fazilka through its Executive Officer being opposite party in the complaint challenging the correctness and legality of the order of the District Forum Ferozepur dated 12.01.2018 against respondent of this appeal being complainant in the complaint. Similarly, Appeal no. 287 of 2018 has been filed by appellant Municipal Council Fazilka through its Executive Officer being opposite party in the complaint challenging the correctness and legality of the order of District Forum Ferozepur dated 05.01.2018 against respondent of the appeal being complainant in the complaint. The order shall be pronounced by us in main First Appeal no.286 of 2018 titled as "Municipal Council Fazilka through its Executive Officer versus Savita Kalra."
Facts of First Appeal No. 286 of 2018 arising out of Complaint No.270 of 2017.
2. The complainant Savita Kalra has filed consumer complaint no. 270 of 2017 U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against OP on the averments that she purchased a plot no. 65 situated on Sunia Road Fazilka on 17.08.2012 and total area of the plot was 25x50. She deposited total price of the plot with OP. She deposited Rs.20,000/- on 17.08.2012 as security. She also deposited Rs.67,190/- with OP, vide receipt dated17.08.2012. She further deposited amount of Rs.87,190/- with OP, vide receipt dated 19.11.2012. She further deposited Rs.87,190/-, vide receipt dated 06.06.2013 and deposited Rs.87,200/-, vide receipt dated 19.12.2013. She asked OP to execute conveyance deed of the above-referred plot in her favour to deliver its possession, but to no effect. She moved two applications dated 29.11.2016 and 11.01.2017 to OP in this regard, but to no effect. She met the officials of the OP in their office and requested that the sale deed be executed in her favour, but of no use. She has filed complaint praying that OP be directed to execute conveyance deed in her favour of the plot with delivery of possession or in the alternative a direction be issued to OP to refund the entire deposited by her with interest @ 18% p.a with further cost of Rs.25,000/- as litigation and Rs.50,000/- as compensation for mental harassment.
3. Upon notice, OP appeared and filed written reply raising preliminary objections that complaint is false and frivolous. The complainant has suppressed the material facts from the Forum. Complex questions of facts and law are involved in the present case, which require elaborate evidence for adjudication and matter need to be referred to the competent civil court for adjudication. OP further averred that some part of the land of Municipal Committee including land in question fall under Punjab Wakf Board and they claimed of its ownership over the same. The matter has been pending before Wakf Tribunal Ferozepur for determination title in case Municipal Committee Fazilka vs. Union of India before Additional District Judge Fazilka. There is arbitration clause in the agreement between the parties , hence consumer complaint is not maintainable. OP also controverted the averments of the complainant even on merits and prayed for dismissal of the complaint.
4. The complainant has tendered in evidence her affidavit Ex.C-8 along with copies of documents Ex.C-1 to Ex.C-7 and closed the evidence. As against it; OP has tendered affidavit of Gurdas Singh Executive Officer Municipal Committee Fazilka as Ex.OP-3 along with copies of documents Ex.OP-1 to Ex.OP-2 and closed the evidence. On conclusion of evidence and arguments, the District Forum Fazilka, accepted the complaint of the complainant by virtue of order dated 12.01.2018. Dissatisfied with the order of the District Forum Fazilka dated 12.01.2018, opposite party now appellant carried this appeal against the same.
Fact of First Appeal No. 287 of 2018 arising out of Complaint No.190 of 2017.
5. The complainant Sumit Kumar Jhamb has filed consumer complaint no. 190 of 2017 U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against OP on the averments that he was successful bidder in an auction conducted by OP for sale of residential plot bearing no. 110 (25'x50') situated at Senia Rod Fazilka on 26.10.2012. OP has received an amount of Rs.20,000/- as security from him, vide receipt no. 481/27 dated 26.10.2012. As per terms and conditions of the auction, he deposited part payment of Rs.75,000/- and Rs.95,500/- including development charges by cheques with OP, vide receipt no.479/4 dated 26.10.2012 and no.520/8 dated 24.01.2013 respectively. He purchased the above said plot for his personal use. He requested OP many times to receive the balance amount of the price and development charges, but of no use. He also served a legal notice dated 20.12.2016 upon OP, but of no use. He alleged deficiency in service and unfair trade practice on the part of OP. Therefore, he filed complaint against OP by praying that OP be directed to refund the entire deposited amounts from complainant with interest @ 18% per annum and hand over the possession of the plot and for not executing a sale deed in his favour, besides Rs.1 lac as compensation for mental harassment and Rs.11,000/- as litigation expenses.
6. Upon notice, OP appeared and filed written reply and contested the complaint of the complainant by raising preliminary objections that complaint is false and frivolous. The complainant has not come to the Forum with clean hands and has concealed the material facts. The Consumer Forum has got no jurisdiction to try and decide the complaint. On merits, it was averred that the complainant has not deposited an amount of Rs.1,63,880/- i.e. balance amount of sale of plot amount and Rs.24,370/- as development charges, so the he himself not followed the terms and conditions of the auction and his deposited amount liable to be forfeited. As per condition no. 4, the complainant was bound to deposit all the installments in time, but he has not done by him. Rest of the averments of the complainant were controverted even on merits and prayed for dismissal of the complaint.
7. The complainant has tendered in evidence his affidavit Ex.C-1, and Ex.C-2 along with copies of documents Ex.C-3 to Ex.C-8 and closed the evidence. As against it; OP has tendered affidavit of Gurdas Singh Executive Officer Municipal Committee Fazilka as Ex.OP-1 along with copies of documents Ex.OP-2 to Ex.OP-3 and closed the evidence. On conclusion of evidence and arguments, the District Forum Fazilka, accepted the complaint of the complainant by virtue of order dated 05.01.2018. Dissatisfied with the order of the District Forum Fazilka dated 05.01.2018, opposite party now appellant carried this appeal against the same.
8. We have heard learned Counsel for the parties at considerable length and have also examined the record of the case.
9. There is no controversy of this fact between the parties that complainant purchased the residential plot in question from OP for sale consideration. The complainant deposited the receipts on different dates towards sale consideration amount with OP. The terms and conditions of the auction were settled between the parties. The grievance of the complainant is that OP failed to execute the conveyance deed of the purchased plot in her favour and to deliver its possession. On the other hand, the submission of OP is that a dispute arose of the property in question between OP and Wakf Board and matter has been pending with regard to disputed title of the property before Wakf Tribunal Ferozepur. There is no dispute between the parties with regard to these factual scenario in this case. The evidence on the record has also been appraised by us with above assistance of counsel for the parties, which also supports the above referred evidence. Gurdas Singh Executive Officer Municipal Committee Fazilka tendered in evidence his affidavit Ex.OP-1 admitting this fact that the sale deed of the plot could not be executed in favour of complainant with delivery of possession because a dispute arose between OP and Wakf Board concerned regarding the title of the property, which is now pending adjudication before Wakf Tribunal Ferozepur. The complainant tendered in evidence affidavit Ex.C-1 stating that despite receipt of the sale consideration amount, OP failed to execute the conveyance deed of the plot in her favour along with delivery of possession thereof. It has transpired in the deposition of the complainant that dispute has been pending between Wakf Board and OP before Wakf Tribunal Ferozepur and this was the great bar in execution of the sale deed and delivery of possession by OP. Even during the arguments before this Commission, counsel for OP now appellant was fair enough not to conceal this point that dispute arose regarding title of the property between OP and Wakf Board , which has been pending before Wakf Tribunal concerned regarding title of the property. Even otherwise, OP committed deficiency in service in not executing the sale deed of the sold property in favour of complainant as per the auction despite receipt of sale consideration amount by developing it. The OP is also guilty of deficiency in service on this point. OP was not supposed to hold out auction of the sold property in this case, if there was pendency of some title dispute between it and Wakf Board concerned. The complainant also issued legal notice to OP in this regard, vide Ex.C-6 dated 19.12.2018 supported by postal receipt Ex.C-7 and acknowledgment Ex.C-8, but to no effect. There is no denial of fact of receipt of sale consideration amount by OP. The terms and conditions of the auction are Ex.OP-3. OP has charged the development charges of Rs.48,750/-from complainant, vide Ex.OP-1. The area of the plot was uneven and OP was to level it within a period of two months before delivery of possession by means of demarcation to complainant. OP has not caused any development in the area sold to complainant nor levelled it. OP, is, thus, deficient in service for not leveling the plot before delivery of possession by means of demarcation and by not developing it, despite receipt of development charges from complainant. OP has been found deficient in the delivery of the above services of complainant, despite receipt of consideration. This finding of fact is accordingly returned on the basis of Ex.OP-1 and evidence on the record. Since OP was to deliver service on the above points to complainant and hence, Consumer Complaint is competent for deficiency in above service despite the fact that it was a case of auction of the plot.
10. The submission of counsel for appellant is that there is arbitration clause and hence dispute can be referred to Arbitrator only and jurisdiction of Consumer Forum is barred. The matter has been settled by larger bench of Hon'ble National Commission in consumer complaint no.701 of 2015, decided on 13.07.2017 titled as "Aftab Singh Vs. EMAAR MGF Land Limited and another". The National Commission has held in this authority that an arbitration clause in the afore-stated kind of Agreements between the complainants and the builder cannot circumscribe the jurisdiction of a Consumer Forum, notwithstanding the amendments made to Section 8 of the Arbitration Act, 1996. Against this order of the National Commission, Civil Appeal nos.23512-23513 of 2017 titled as EMAAR MGF Land Limited and another Vs. Aftab Singh" was filed by OP before the Top Court, which has been recently dismissed by the Apex Court, vide order dated 13.02.2018. Consequently, the existence of an arbitration clause is not a bar to resolution of this dispute by the Consumer Forum. Even otherwise, the Apex Court has also so held in "National Seeds Corporation Limited Vs. M. Madhusudhan Reddy and another" 2012(2)CLT-382/383 and in Fair Air Engineers (P) Ltd. vs. N. K. Modi (1996) 6 SCC 385 that Section 3 of C.P. Act gives additional remedy to consumers to avail of his remedy as per his choice. In view of Section 3 of C.P. Act, conferring the additional remedy on the consumers, we find no force in this submission of OPs on this point and the same stands rejected.
11. The District Forum also pointed out deficiency in service on the part of OP by not leveling the plot and developing it before delivery of possession to complainant and hence we direct OP to refund the deposited amount by complainant with interest @ 9% per annum from the date of their deposits till payment and compensation of Rs.5000/- for mental harassment and Rs.3000/- as litigation expenses. We find no illegality or material infirmity in the order of the District Forum in this appeal and same is affirmed.
12. As a result of our above discussion, by upholding the order of the District Forum Ferozepur dated 12.01.2018 and 05.01.2018, we find no merit in the both the First Appeal No.286 of 2018 filed by opposite party now appellant and another First Appeal No.287 of 2018 filed by opposite party now appellant. Both these above-referred two appeals are ordered to be dismissed.
13. In First Appeal No.286 of 2018 appellant had deposited an amount of Rs.25,000/- in this Commission at the time of filing the appeal. This amount with interest, if any, accrued thereon, be remitted by the registry to the respondent/complainant of this appeal by way of crossed cheque/demand draft after the expiry of 45 days. Remaining amount, as per order of the District Forum shall be paid by the appellant to respondent/complainant with 45 days from receipt of copy of this order.
14. In First Appeal No.287 of 2018 appellant had deposited an amount of Rs.25,000/- in this Commission at the time of filing the appeal. This amount with interest, if any, accrued thereon, be remitted by the registry to the respondent/complainant of this appeal by way of crossed cheque/demand draft after the expiry of 45 days. Remaining amount, as per order of the District Forum shall be paid by the appellant to respondent/complainant with 45 days from receipt of copy of this order.
15. Arguments in this appeal was heard on 12.10.2018 and the order was reserved. The certified copy of the order be communicated to the parties.
16. The appeals could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (KIRAN SIBAL) MEMBER October 25, 2018 (ravi)