State Consumer Disputes Redressal Commission
Jaswant Hans vs Ashok Kumar Goel on 22 December, 2010
H
H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
SHIMLA-9.
DECIDED ON : 22.12.2010.
FIRST APPEAL No.230/2010.
In
the matter of:
Shri Jaswant Hans son of Shri Suddda Singh, R/o
A-36/9, DLF, Qutab Enclave, Phase-I, Gurgaon-122 002.
Appellant/Complainant.
Versus
Shri Ashok Kumar Goel son of late Shri Jagat Ram
Goel, The Palace Hotel, Fingask Estate, Shimla-171 003.
.. Respondent/OP.
For the Appellant/complainant: Mr. Peeyush Verma, Advocate.
For the Respondent/OP: Mr. Neel Kamal Sood, Advocate.
..
FIRST
APPEAL NO.235/2010.
Shri Ashok Kumar Goel son of late Shri Jagat Ram
Goel, The Palace Hotel, Fingask Estate, Shimla-171 003.
.. Appellant/OP.
Versus
Shri Jaswant Hans son of Shri Suddda Singh, R/o
A-36/9, DLF, Qutab Enclave, Phase-I, Gurgaon-122 002.
Respondent/Complainant.
For the Appellant/OP: Mr. Neel
Kamal Sood, Advocate.
For the Respondent/complainant: Mr. Peeyush Verma, Advocate.
..
Honble Mrs. Saroj Sharma, Member.
Whether approved for reporting? Yes.
O R D E R:
Per Mrs. Saroj Sharma, Presiding Member.
Complainant Shri Jaswant Hans and opposite party (OP) Shri Ashok Kumar Goel, who were arrayed as parties before the District Forum, Shimla in Consumer Complaint No.98/2007. This complaint was disposed of on 25.03.2010. District Forum below while disposing of the complaint as ordered as under:-
Resultantly, we allow this complaint and in the given facts and circumstances of the case, we proceed to direct the OP to pay the market value extantly prevailing of the deficient area sold to him. Also the OP shall pay the balance/difference of the amount agreed to be spent on fixtures and fittings and the amount actually spent, which shall carry interest at the rate of 9% per annum, with effect from the date of filing of the complaint, till realization. The litigation cost, is, quantified at Rs.2500/-. This order shall be complied with by the OP, within a period of forty five days, after the date of receipt of copy of this order. The learned counsel for the parties has undertaken to collect the certified copy of this order, from the office, free of cost, as per rules. The file after due completion, be consigned to record room.
2. Complainant has preferred Appeal No.230/2010, whereas the OP has preferred Appeal No.235/2010 as both are not satisfied with the said decision.
Complainant at the time of hearing prayed for allowing the appeal and prayed for grant of relief in terms of prayer clause of the said complaint. Whereas in his appeal, the OP has prayed for dismissal of the appeal of the complainant, while allowing his appeal and consequently dismissing the complaint being frivolous. Both parties have prayed for costs as well as special damages.
3. Record of the District Forum below reveals that flat No.322 comprising of two bed rooms, one drawing room, two toilets, one kitchen, common corridor with RCC beams columns and RCC slab half brick wall and common wall of Hotel laid in cement mortar, soft wood frames and shelters of doors and windows, measuring 96.25 sq. mtrs. (1036 sq. feet) in the second floor was purchased by the complainant and according to him he made the entire payment. In this behalf he has placed on record photocopy of sale deed Annexure C-1 with his complaint. Despite full payment and registration of the sale deed, possession of the flat was given only in the month of December, 2006. At that time he was surprised to find that what was held out at the time of sale of flat was different and at spot the flat was in a deplorable condition, because of poor quality of construction, workmanship, using old and inferior quality of material. Whenever attempt was made to contact the OP, he evaded the issue. Deficiency which was found according to the complainant has been projected in paragraph No.5 of the complaint. In this background on account of deficiency of service, he suffered mental, physical as well as financial harassment and was thus entitled to be compensated for it. Further case of the complainant was that against the huge area of 96.25 sq. mtrs. (1036 sq.feet) area provided to him was 84.17 sq. mtrs., i.e. 906 sq. feet in addition to deficiency in material, like sanitary fittings, fixtures etc. etc. He thus claimed Rs.15,00,000/- as damages from the OP. With a view to support his claim, complainant relied upon photographs Annexure C-2 and report of Shri Vivek Karol Valuer Annexure C-3.
4. This stand of the complainant was disputed by the OP. According to him, complaint was misconceived, groundless; Forum had no jurisdiction to entertain upon the disputes involved in the complaint, because it was not a consumer dispute, therefore, does not fall within the provisions of Consumer Protection Act, 1986 and was exclusively triable by a Civil Court. It was a flagrant abuse of process of law and aim to harass and blackmail the OP.
Complainant had no locus standie to file the present complaint which was liable to be dismissed under Section 26 of Consumer Protection Act, 1986, transaction being commercial under Contract Act. Besides this, the complainant had not come to the Forum with clean hands having concealed material facts. Reliance was placed by him on possession letter dated 28.03.2007 executed between the parties. It was admitted by the OP that he had sold flat No.322 consisting of two bed rooms, one drawing room, two toilets, one kitchen and one corridor with RCC beams columns and RCC slab half brick wall and common wall, wood frames and shutters of doors and windows and inferior designing such as all internal wooden works, fixtures and wall carving etc. Deficiency of service as alleged on the part of OP was categorically denied.
With a view to contest the claim of the complainant regarding the area being less, reliance was placed by the OP on Annexure R-2 written by him to Engineer Vivek Karol whose report Annexure C-3 was relied upon by the complainant. In response to Annexure C-2 Engineer Karol had informed the complainant that the material as mentioned to the tune of Rs.1,67,687/- was not the part of sale deed and it was a different head and further according to the OP it was admitted by Engineer Karol that while calculating the area, he had not taken into consideration the thickness of plaster and length of flat from the right side when you face the flat.
He has also not taken into consideration the area of passage and stairs which according to Shri Ashok Kumar Goel (OP) was approximately 30 sq. feet and if the plaster thickness and the length from the left hand side of the flat was also taken into consideration, then the total super area shall be 1036 sq. feet. Para-2 of Annexure R-3 is reproduced as follows:-
2. I have clearly mentioned in my valuation Report and the sale deed shown to me by Sh. Jaswant Hans that the value of Rs.18,00,000/- as per the sale deed includes the value of flat i.e. Rs.9,00,000/- which is RCC Beams, RCC columns, RCC slab and half brick walls, common corridor & common wall of the hotel and another Rs.9,00,000/- for other internal wood works, fixtures and wall carving etc. In my opinion the above specifications does not include the furnishing material such as furniture, crockery,almirahs, bed sheets etc. The valuation prepared by me for Sh. Jaswant Hans of the furnishing material as mentioned above (written in red colour) is Rs.1,67,697/- and is not the part of the sale deed. It is a different head.
5. Thus according to the OP, there was neither any deficiency of service nor unfair trade practice indulged into by him and he prayed for dismissal of the complaint.
6. Complainant filed rejoinder to the reply of the OP regarding Annexure C-2 and C-3 which does not either controvert or contest the contents of both these documents. He has not categorically disputed Annexures R-2 and R-3, but has pleaded that the OP had obtained the signatures on papers, most of which were blank in the name of necessary formalities to be completed. Complainant being an old man who had paid huge sum had got nothing despite sale deed was not bound to do as directed. An attempt is made to get out of Annexure R-1.
7. Record of the complaint file shows that there are two reports of Local Commissioner on record. First report of Local Commissioner is at pages 127 to 131 of the complaint file.
It appears that when the complaint was filed, the Local Commissioner was appointed in ex-parte at the instance of the complainant. Thereafter another application was filed for appointment of Local Commissioner. This application is at pages 149 to 153 of the complaint file. This was seriously contested. Again vide order dated 11.05.2009 Local Commissioner was appointed. His second report is at pages 159 to 161 of the complaint file. The Local Commissioner was the same gentleman, Mr. J.L. Sharma, Advocate.
8. In the context of report of Local Commissioner, something strange was on the file that he appeared as counsel on behalf of the complainant as is evident from the order of District Forum dated 03.11.2009. Nothing more needs to be said in this behalf.
9. In the light of above facts and documents on record, these appeals are being disposed of as these have been filed against the order of District Forum below.
10. First submission of Mr. Verma, learned counsel for the complainant was that I while sitting single cannot adjudicate upon this complaint. This position was seriously contested by Mr. Neel Kamal Sood, learned counsel for the OP. According to Mr. Verma, a single member can gone into complaint when the President of the Commissioner is also there and as such for want of quorum, both these appeals are liable to be adjourned sine die until the quorum was there. For supporting this submission, he drew my attention to the decision of this Commission in No.23/2010, dated 04.05.2010 in the case of M/s Sahara Coir Udyog through its Proprietor versus National Insurance Company Limited and another. He also referred to another decision while pleading the case of his client.
11. After taking note of this decision and other decision relied upon by Mr. Verma which reference is not made, I am of the opinion that this plea is without merit besides being wholly misconceived. Reason being that the President vide order dated 12.07.2010 had constituted the Bench under Section 16 (1B) of the Consumer Protection Act, 1986 for hearing this case. Said order is in the following terms:-
12. 12.07.2010. Present: Mr. Peeyush Verma, Advocate for the appellant.
For hearing of this appeal Bench of Learned Member (Mrs. Saroj Sharma) is constituted under Section 16 (1B) of the Consumer Protection Act, 1986. Mr. Peeyush Verma submitted that this matter may be ordered to be taken up today after the cause list is exhausted. Office will issue a supplementary cause list.
Bench of Learned Member is constituted as two of us (the President & Male Member) are unable to hear this matter.
Sd/-
(Justice Arun Kumar Goel) Retd.
President.
13. In addition to this, I am of the view that when the members cannot hear a matter, then on the doctrine of necessity, I am not precluded from hearing these appeals.
Therefore, this plea is hereby rejected and it is held that both these appeals could be heard by me while sitting single. I may be appropriate to notice here that identical order was passed in Appeal No.235/2010, while constituting the Bench. In this behalf there is also ample provision in Consumer Protection Act, 1986 and Himachal Pradesh Consumer Protection Rules, 1988, therefore, on this ground also the plea of Mr. Verma that single member cannot hear the appeals is without substance.
14. Now comes to the main dispute of these appeals, as to what was the area sold vide Annexure C-1 to the complainant by the OP. No doubt in sale deed, there is mention of 96.25 sq. mtrs. of area (1036 sq. feet), but in the sale deed, there is mention of this being the super area which in case of construction would mean the actual area as well as the areas which are common in flats in the floors/complex where such flats are sold. In this behalf Annexure C-3 a letter from Engineer Vivek Karol Valuer, on the basis of whose report Annexure C-3, complaint was filed by the complainant completely shutters his case. He has clearly mentioned that the super area of the flat which is 96.25 sq. mtrs. is there, if the thickness of the plaster, area of passages, stairs and length from left to right side from the spot is taken into consideration the total area, i.e. 1036 sq. feet. When this report is prepared by him for Shri Jaswant Hans (complainant) of furnishing material as mentioned in the report was not a part of sale deed, it is a different head. In the face of this position, no reliance should have been placed by the District Forum below on Annexure C-3 with a view to allow the complaint while passing the impugned order. Thus Annexure C-3 cannot be said to be a substantive piece of evidence in the face of Annexure R-3 which could not be contested on behalf of the complainant.
Reason being that this document gives the full detail of the super area on which there is mention of Annexure C-1 a sale deed as relied upon by the complainant in support of his complaint.
It is a matter of common knowledge that where flats are sold, there are common usages, like verandah, stairs, water storage tanks etc. Here the term super area assumes significance. Total area would be the super area which is actually used.
15. At this stage, it is also necessary to refer to the stand urged on behalf of the OP that the complaint involved highly disputed questions of fact regarding interpretation of sale deed, what was the actual area of the flat and what was its super area in the building complex. Both being separate meaning as they undertake super area. Though, Mr. Verma forcefully urged that so far as common usage areas in case of flat sold to his client by the OP was concerned, it was in addition and as well as over and above area shown in the sale deed, i.e. 96.25 sq. mtrs. or to say 10.36 sq. feet. This is also my view that needs to be decided in a civil suit where the parties would own expert evidence and these questions cannot be gone into summary proceedings, where the disputes have to be settled on the basis of facts. Thus, in case the plea of Mr. Neel Kamal Sood on behalf of the OP is upheld, it may not prejudice or shutters the right of the OP to approach the civil court. Though, it is left for him to see whether he would like to approach the civil court or not.
What was to include in the sale deed has been taken note of by Mr. Karol, who report Annexure C-3 is relied upon by Mr. Verma is clearly spelt out from Annexure R-3. In the light of this position, I am of the view that appropriate Forum for adjudicating the claim of the complainant would be the civil court, where the parties would lead evidence, both oral as well as documentary.
Witnesses will be examined, cross-examined as well as re-examined and then on consideration of the entire evidence, rights of the parties will be decided. This submission of Mr. Sood that the complaint involved highly disputed questions of facts deserves to be upheld and submissions to the contrary by Mr. Verma merit rejection. Ordered accordingly.
16. Mr. Verma submitted that his client has been put to grave hardship besides inconvenience by the OP who has normally extracted money from his client and had provided him something which was not habitable. He drew my attention to the two reports of Local Commissioners referred do in the preceding paras. Suffice it to say, both these reports cannot be looked into. If at all the District Forum below felt that the Local Commissioner was to be appointed, then Engineer should have been called upon to undertake the job, rather than a lawyer, who later-on appeared on behalf of the complainant on one of the hearing of this complaint and as such his reports cannot be accepted on their face value.
17. With reference to Annexure R-1, the letter of possession which was not disputed on behalf of the complainant, but was admitted to be explained having been obtained by the OP and for which the complainant had no option, but to sign the same assumes great importance in this case. Complainant appears to be a literate person, as he asserts that in December, 2006 he was given possession when the flat was in deplorable condition.
If that was so, what was the necessity for him to have executed Annexure R-1 the possession letter? This document clearly shows that he had satisfied himself as regards the quality of construction, material and fixtures and fittings provided therein and showed a location of flat in the building and had no right to raise any claim on any account against the purportor or representatives of nominees. It may be noted that Annexure R-1 is of dated 28.03.2007 and this complaint was presented on 02.04.2007. If this document had been obtained from the complainant as stated in rejoinder by him, he could have immediately sent a notice to the OP saying that he is not bound by this document. Though, at this stage Mr. Verma submitted that his client had no option but to execute the same, because the OP had caused harassment to the complainant beyond tolerance. Thus the plea of Mr. Verma that the sub-standard materials were used and construction was of poor quality or that the wood work was of highly inferior quality etc. cannot be accepted.
18. Mr. Verma with a view to uphold the order of the District Forum below and for allowing the appeal of his client, laid great emphasis on Annexure C-2 photographs and Annexure C-3 the report of Engineer Vivek Karol Valuer. Why his affidavit is not filed, there is no explanation given. Moreover, Annexure C-1 was executed between the parties, but the plan of flat purchased by the complainant from the OP has been withheld by him, which is the best evidence to substantiate that what was the area actually sold at the spot to the complainant by the OP. This is another circumstance to upheld the plea of Mr. Sood that the super area was sold measuring 96.25 sq. mtrs. or to say 1036 sq. feet.
19. No other point was urged.
20. In the light of above discussion, it is held as under:-
a) That the complaint involves adjudication of highly disputed as well as controversial questions which can only be adjudicated upon by leading evidence in regular trial and cannot be decided in summary proceedings under Consumer Protection Act, 1986 and as such the complaint was not maintainable and ;
b) Once it is held so, then this order will not bar the complainant to approach the civil court for Redressal of his grievances, if any as per law.
21. In the light of above discussion, appeal filed by the OP, i.e. Appeal No.235/2010 is allowed and the appeal filed by the complainant being Appeal No.230/2010 is dismissed, as a result of appeal of the OP having been allowed, it is held that the complaint was not maintainable.
22. No costs.
23. All interim orders passed from time to time in Appeal No.235/2010 shall stand vacated forthwith.
24. Office is directed to place authenticated copy of this order on the file of Appeal No.235/2010.
25. Learned counsel for the parties have undertaken to collect copy of this order from the Court Secretary free of cost as per Rules.
SHIMLA 22.12.2010.
( Saroj Sharma ) Member.
/dinesh/