State Consumer Disputes Redressal Commission
Dr. Jagtesh Singh Sidhu vs M/S Atm Estate Pvt. Ltd. & Ors. on 30 January, 2024
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
Consumer Complaint No.20 of 2023
Date of institution : 05.04.2023
Reserved On : 27.12.2023
Date of decision : 30.01.2024
Dr. Jagtesh Singh Sidhu S/o Jagrup Singh Sidhu, resident of
H.No.154, Shastri Nagar, Lawrence Road Extension, Amritsar, Punjab.
....Complainant
Versus
1.M/s ATM Estates Pvt. Ltd., through its Director, Registered Office at 8/33, IInd Floor, Sat Bhravan School Marg, W.E.A., Karol Bagh, New Delhi-110005.
2. Inderjit Sachdeva, Director, M/s ATM Estates Pvt. Ltd., 8/33, IInd Floor, Sat Bhravan School Marg, W.E.A., Karol Bagh, New Delhi-110005.
Also at Site No.7, Plot No.11, New Rajinder Nagar, Central Delhi, Delhi-110060.
3. Jatin Sachdeva, Director, M/s ATM Estates Pvt. Ltd., 8/33, IInd Floor, Sat Bhravan School Marg, W.E.A., Karol Bagh, New Delhi-110005.
Also at Site No.7, Plot No.11, New Rajinder Nagar, Central Delhi, Delhi-110060.
4. Kapil Sachdeva, Director, M/s ATM Estates Pvt. Ltd., 8/33, IInd Floor, Sat Bhravan School Marg, W.E.A., Karol Bagh, New Delhi-110005.
Also at Site No.7, Plot No.11, New Rajinder Nagar, Central Delhi, Delhi-110060.
5. Housing Development Finance Corporation Ltd., through its Authorized Officer, SCO 153-155, Sector 8-C, Madhya Marg, Chandigarh-160008.
....OPs Consumer Complaint under Section 47 (i)
(a) (ii) read with Section 49(2) of the Consumer Protection Act, 2019 on account of unfair terms and conditions of the Consumer Complaint No.20 of 2023 2 contract/Buyer's Agreement and 'deficiency in service'.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No Present:
For the Complainant : Ms. Niharika Goel, Advocate For OPs No.1 to 4 : Ms. Ankita Malhotra, Advocate for Sh. Shourya Arora, Advocate For OP No.5 : Sh. Aneeshh Chopra, Advocate for Sh. Shekhar Verma, Advocate.
JUSTICE DAYA CHAUDHARY, PRESIDENT Complainant-Dr. Jagtesh Singh Sidhu has filed the present Complaint under Section 47 (i) (a) (ii) read with Section 49(2) of the Consumer Protection Act, 2019 of the Consumer Protection Act, 2019 (in short "the Act") against the OPs stating therein that the Complainant was in search of a modern apartment in the city of Amritsar for use of his family, where better/modern facilities were available. He was allured and enticed by the promises and assurances made by OPs No.1 to 4 in the Brochure (Ex.C-1) regarding their upcoming residential project namely 'Amritsar One' at Shubham Enclave, G.T. Road, Amritsar. The Complainant applied for allotment of a 3 BHK apartment measuring approximately 1650 sq.ft. with for total paid-up value of ₹37,12,500/- with OPs No.1 to 4 on 03.03.2011. He had deposited an amount of ₹9,10,000/- with the OPs towards the Consumer Complaint No.20 of 2023 3 price of said apartment on various dates, the details of which are given as under:
Sr. No. Date Amount (in ₹) Cheque/DD Receipt No. No.
1. 03.03.2011 1,00,000 336324 ATM/0158/10.06.2011
2. 16.03.2011 2,50,000 469986 ATM/0079/10.06.2011
3. 31.08.2011 2,00,000 447892 ATM/0314/07.09.2011
4. 06.09.2011 70,000 172645 ATM/0312/07.09.2011
5. 12.09.2011 2,90,000 407896 ATM/0325/17.09.2011
2. It has further been mentioned in the Complaint that in-spite of depositing said amount of 25% of the total price of the apartment, still no response was there from the side of the OPs despite repeated requests. However, the Allotment Letter dated 25.11.2012 (Ex.C-4) was issued to the Complainant and Unit No.25-C, Type-E, having super area of approximately 1650 sq.ft. on 2nd Floor of said project was allotted to him. An assurance was given by the OPs that the progress of the project was in full swing but it was delayed on one pretext or the other and the execution of the Buyer's Agreement was also delayed. Ultimately, the Flat Buyer's Agreement (Ex.C-5) (in short 'the agreement') was executed on 09.01.2013 between the OPs along with SRS Developers and the Complainant.
3. It has further been mentioned in the Complaint that a Quadripartite Agreement (Ex.C-6) also was executed on 22.02.2013 between the OPs and Complainant as well as HDFC Ltd. for the loan amount of ₹28 lac, which was disbursed to OPs No.1 to 4 towards payment of balance sale price of the Unit. However, the possession of Consumer Complaint No.20 of 2023 4 the Unit was not offered on one excuse or the other despite repeated visits and requests of the Complainant. The Complainant was having no choice after paying the huge amount to bear the EMIs towards the loan obtained by him and the same was only on the assurances of the OPs. In the year 2017, the Complainant approached the OPs, but the possession was further delayed on the pretext that the Company had to make necessary compliances in accordance with new legislation i.e. Real Estate (Regulation and Development) Act, 2016 (RERA). The OPs had got registered their project with RERA in the year 2018 and had made further excuses of making necessary compliances. They had also asked the Complainant to sign fresh agreement as per the provisions of RERA with the condition to deliver the possession after a period of further 3 years from the execution of the fresh agreement.
The Complainant had outrightly refused to execute the fresh agreement, as he had booked the Unit in the year 2011. Reference to Sections 18(1) and 19(4) of RERA was also made in the Complaint.
4. It has further been mentioned in the Complaint that as per Clause 8(d) of the agreement, the possession of the Unit was to be handed over after a period of 36 months from the date of booking i.e. by April, 2014 but the OPs had also included the extension of a period of 6 months for the purpose of obtaining the statutory compliances. However, thereafter also the matter was lingered on. It was also mentioned in said Clause that in case the OPs failed to deliver the possession within said period, the Complainant would be receiving the Consumer Complaint No.20 of 2023 5 compensation at the rate of ₹5/- per sq.ft. per month beyond the stipulated period fixed for delivery of possession.
5. It has further been mentioned in the Complaint that the Complainant again approached the OPs for taking the possession in the year 2020 but they had started to make the excuses of COVID-19 pandemic. Thereafter also, the OPs had failed to deliver the possession of the Unit to the Complainant without any sufficient reason. Ultimately, the Complainant had sent a Legal Notice dated 01.03.2023 to the OPs for not handing over the possession and for declaring the agreement as null and void, as the OPs were not having any intention to perform their obligations and had also sought the refund of the entire amount paid by the Complainant i.e. ₹37,12,500/-.
6. It has further been mentioned in the Complaint that Clauses 5(a), 8(d), 8(f), 15 and 20 of the Flat Buyer's Agreement dated 09.01.2013 are unfair, biased and totally in favour of the OPs and as such the said agreement is liable to be set aside.
7. It has further been mentioned in the Complaint that the Complainant had paid all the EMS of the loan to the HDFC Bank, who had also issued the 'No Objection Certificate' dated 23.06.2022 (Ex.C-
8). The action and inaction on the part of the OPs amounts to 'deficiency in service' and 'unfair trade practice' and reference to certain judgments has also been made. The following prayer was made in the Complaint:
Consumer Complaint No.20 of 2023 6
i) The Flat Buyer's Agreement (Ex.C-5) and the Allotment Letter (Ex.C-4) be declared illegal, null and void being one-
sided and unfair contract as defined under Section 2(46) of the Act. (left/forgone)
ii) The OPs be directed to deliver the actual and physical possession of the Unit in dispute after obtaining the Completion Certificate within a period of 30 days or in the alternative to refund the amount of ₹37,12,500/- paid towards the price of the Unit along with interest at the rate of 18% per annum from the respective dates of deposit till its realization along with pendente lite interest.
iii) To pay the amount of interest paid on the loan amount of ₹28 lac by the Complainant to HDFC Bank as the OPs fraudulently allured the Complainant avail the loan facility without any intention to deliver the possession of the Unit.
iv) To pay the compensation of ₹5 lac for causing mental harassment to the Complainant.
v) To pay an amount of ₹85,000/- towards litigation expenses.
vi) Any other relief which may be deemed fit and proper may kindly be granted in favour of the Complainant.
8. However, learned Counsel for the Complainant had restricted his prayer qua to Clause (ii) to (vi) only as is clear from the zimni order dated 24.05.2023, which is reproduced as under:
" Learned Counsel for the Complainant submits that inadvertently it was stated before this Court on the last date of hearing i.e. 11.04.2023 that the Complainant had restricted the prayer qua to prayer No.2(i), whereas it was qua to (ii) to (vi). Accordingly, the order dated 11.04.2023 is modified.
Sh. Bhanuj Gambhir, Advocate, has filed memo of appearance on behalf of OPs No.1 to 4 and seeks time to file written statement. Allowed. Written statement alongwith power of attorney be filed in the Registry on or before 30.05.2023 with advance copy to Counsel opposite.
Ms. Neetu Singh, Advocate, has filed power of attorney as well as written statement on behalf of OP No.5. Copy supplied.
Adjourned to 02.06.2023 for further proceedings."
9. Upon issuance of notices in the Complaint, OPs No.1 to 4 appeared through Counsel and filed their reply, wherein certain preliminary objections were raised regarding maintainability of the Consumer Complaint No.20 of 2023 7 Complaint, jurisdiction of this Commission etc. It was further mentioned that it was not a case of any 'deficiency in service' on their part and the Complaint was not maintainable. The Complaint was abuse of the process of law, which was filed with ulterior motive only to harass the OPs. The Complainant has not only approached this Commission with clean hands but has also misled this Commission by mentioned wrong facts. Further it was mentioned that the Complainant does not fall under the definition of 'consumer', as he is doing the work of sale and purchase of properties for the purpose of earning profits. It was further mentioned that the terms of the agreement have been challenged by levelling certain allegations upon the OPs and the disputed question of facts and law cannot be decided in summary proceedings and the case be referred to the Civil Court. Further it has been mentioned that the value of the Unit in dispute is only ₹37,12,500/-, which is less than the pecuniary jurisdiction of this Commission as set forth under Section 49 (1) (a) of the Act. It was further mentioned that the possession of the Unit could not be delivered within the stipulated period due to force majeure circumstances. The other averments as made in the Complaint were denied and it was prayed that the Complaint be dismissed.
10. OP No.5 had filed short reply by way of affidavit of Sh. Aditya Kochar, Deputy Manager by stating therein OP No.5 is an financial institution, who had advanced the loan of ₹21,11,521/- to the Complainant for purchase of the Unit from OPs No.1 to 4, which has been repaid by him on 08.06.2022. There is no allegation of Consumer Complaint No.20 of 2023 8 'deficiency in service' against OP No.5 and the Complaint against OP No.5 is liable to be dismissed.
11. Rejoinders to the reply filed by OPs No.1 to 5 has been filed by the Complainant, wherein the averments as made in the Complaint have been reiterated/repeated and the version of OPs No.1 to 5 in their reply has been denied/controverted.
12. The Complainant in order to prove his case has filed his own affidavit along with the copies of the documents Ex.C-1 to Ex.C-
12. OPs No.1 to 4 with the reply filed documents Annexures OP-1 and OP-2. OP No.5 has also filed the documents Ex.OP-5/1 and Ex.OP- 5/2.
13. Ms. Niharika Goel, learned Counsel for the Complainant has submitted that opposite parties No.1 to 4 have failed to develop the project and to deliver the possession of the Unit in question with complete development and also the Completion Certificate within the stipulated period despite receipt of entire sale consideration from the Complainant. The Complainant has requested them to deliver possession of the Unit on a number of occasions but no effect. OPs No.1 to 4 had utilized the amount so deposited by the Complainant for their own purpose without bothering about the completion of the project. They have also failed to obtain the requisite approvals/sanctions from the competent authorities prior to setting up the project. Learned Counsel has also made reference to various clauses of the agreement as mentioned above and has also submitted Consumer Complaint No.20 of 2023 9 that the terms and conditions of the agreement are unfair and the agreement/contract between the parties be declared null and void. Learned Counsel has further submitted that no opportunity was afforded to the Complainant to read and go through the contents of agreement. At the end, learned Counsel has submitted that the act of the OPs is a case of 'deficiency in service' and they had also indulged in 'unfair trade practice' and as such the Complainant is entitled to all the reliefs as prayed for in the Complaint. Learned Counsel has also relied upon the following judgments in support of her contentions:
i) Ireo Grace Realtech Pvt. Ltd. v. Abhishek Khanna and Ors. (2021) 3 SCC 241 (SC);
ii) Texco Marketing Pvt. Ltd. v. TATA AIG General Insurance Co. Ltd. & Ors. Civil Appeal No.8249 of 2022 (SC);
iii) Experion Developers Pvt. Ltd. v. Sushma Ashok Shiroor 2022 SCC Online SC 416 (SC);
iv) Wg. Cdr. Arifur Rahman Khan and Aleya Sultana and Ors. v. DLF Southern Homes Ltd. 2020 (3) RCR (Civil) 544 (SC);
v) Fortune Infrastructure v. Trevor D'lima (2018) 5 SCC 442 (SC);
vi) Kolkata West International City Pvt. Ltd. v. Devasis Rudra II (2019) CPJ 29 (SC);
vii) Bharat Malhotra v. Jalandhar Improvement Trust & Ors. CC No.226 of 2020 decided on 10.08.2022 (Punjab State Consumer Commission);
viii) Jaspreet Singh Chhabra v. ATM Estates Pvt. Ltd. & Anr. CC No.391 of 2019 decided on 17.02.2020 (Punjab State Consumer Commission); and
ix) Tejinder Singh v. ATM Estates Pvt. Ltd. & Anr. CC No.1007 of 2017 decided on 15.05.2018 (Punjab State Consumer Commission).
14. Ms. Ankita Malhotra proxy for Mr. Shourya Arora, learned Counsel for opposite parties No.1 to 4 has submitted that this Commission has no pecuniary jurisdiction to try and adjudicate the Consumer Complaint No.20 of 2023 10 present Complaint, as the amount involved in the present case is approximately ₹37 lac, whereas the State Commission has the jurisdiction in cases where the amount involved is more than ₹50 lac. Learned Counsel has further submitted that the Complainant does not fall under the definition of 'Consumer', rather he is an investor. Learned Counsel has further submitted that the possession could not be delivered to the Complainant due to force majeure circumstances such as outbreak of the pandemic of COVID-19 as restrained by the Courts. Learned Counsel has further submitted that the plea of the Complainant that the terms and conditions of the contract are one sided is an afterthought as he had thoroughly gone through and understood all the terms and conditions at the time of execution of the agreement. Learned Counsel has further submitted that the project of OPs No.1 to 4 was approved and sanctioned and some of the buyers had already taken the possession of their Units and are also residing in the project. There is no 'deficiency in service' on the part of the OPs. Learned Counsel has also relied upon the following judgments in support of her contentions:
i) Neena Aneja & Anr. v. Jia Prakash Associates Ltd. (2022) 2 SCC;
ii) Pyaridevi Chabiraj Steels Pvt. Ltd. v. National Insurance Co. Ltd. & Ors. 2020 SCC Online NCDRC 845; and
iii) Navneet Sharma & Anr. v. ATM Estates Pvt. Ltd. & Anr. CC No.902 of 2018 decided on 22.04.2019 (Punjab State Consumer Commission).
15. Mr. Aneeshh Chopra proxy for Mr. Shekhar Verma, learned Counsel for opposite party No.5 has submitted that the Consumer Complaint No.20 of 2023 11 dispute involved in the Complaint is between the Complainant and opposite parties No.1 to 4. Opposite party No.4 had only advanced the loan amount in favour of the Complainant for paying the sale price of the Unit as per the terms and conditions of the Quadripartite Agreement (Ex.C-6). The parties were bound by the terms and conditions thereof. There was no 'deficiency in service' on the part of opposite party No.5.
16. I have heard the arguments raised by learned Counsel for the parties. I have also gone through the averments of the Complaint, replies thereof, written arguments submitted on behalf of the Complainant and other documents available on the file.
17. Admittedly, the Complainant had initially filed the present Complaint under Section 47 (i) (a) (ii) read with Section 49(2) of the Consumer Protection Act, 2019 stating to be a case of unfair terms and conditions of the contract/Buyer's Agreement and also 'deficiency in service'.
18. The Complainant had made a specific prayer (i) at Page-28 of the Paperbook that the Flat Buyer's Agreement (Ex.C-5) and the Allotment Letter (Ex.C-4) be declared illegal, null and void being the one-sided and unfair contract, as defined under Section 2(46) of the Act. Further, it had been prayed that directions be issued to the OPs to deliver the actual and physical possession of the Unit in dispute after obtaining the Completion Certificate within a period of 30 days or in the alternative to refund the amount of ₹37,12,500/- as paid Consumer Complaint No.20 of 2023 12 towards the price of the Unit along with the interest at the rate of 18% per annum from the respective dates of deposit till its realization along with pendente lite interest. Further a direction was sought to be issued to pay the interest paid on the loan amount of ₹28 lac by the Complainant to HDFC Ltd., as the Complainant was fraudulently allured to avail the loan facility without having any intention to deliver the possession of the Unit. It was also prayed that a compensation of ₹5 lac be awarded for causing mental harassment to the Complainant as well as ₹85,000/- towards litigation expenses.
19. The case came up for hearing for the first time on 11.04.2023 and the Counsel for the Complainant had restricted her prayer qua to prayer (ii) only as mentioned at Page-28 of the Paperbook i.e. for handing over the physical possession of the Unit or the refund of the amount so deposited by the Complainant. This fact is evident from the zimni order dated 11.04.2023 passed by this Commission, which is reproduced as under:
" Heard.
Learned Counsel for the Complainant has restricted her prayer qua to prayer No.(ii) only as mentioned Page No.28 of the paper book i.e. for handing over the physical possession of the Unit or refund of the amount.
Admitted.
Notice be issued to the OPs for 24.05.2023."
20. Thereafter, the Complaint came up for hearing on 24.05.2023 and the Counsel for the Complainant had submitted that inadvertently, it was stated before this Commission on the last date of hearing i.e. 11.04.2023 that the Complainant had restricted the prayer qua to Prayer No.2(i) whereas it was qua to (ii) to (iv). Keeping in view Consumer Complaint No.20 of 2023 13 the said submission of the Counsel for the Complainant, the order dated 11.04.2023 passed by this Commission was modified accordingly. The zimni order dated 24.05.2023 passed by this Commission is reproduced as under:
" Learned Counsel for the Complainant submits that inadvertently it was stated before this Court on the last date of hearing i.e. 11.04.2023 that the Complainant had restricted the prayer qua to prayer No.2(i), whereas it was qua to (ii) to (vi). Accordingly, the order dated 11.04.2023 is modified.
Sh. Bhanuj Gambhir, Advocate, has filed memo of appearance on behalf of OPs No.1 to 4 and seeks time to file written statement. Allowed. Written statement alongwith power of attorney be filed in the Registry on or before 30.05.2023 with advance copy to Counsel opposite.
Ms. Neetu Singh, Advocate, has filed power of attorney as well as written statement on behalf of OP No.5. Copy supplied.
Adjourned to 02.06.2023 for further proceedings."
21. On perusal of aforesaid zimni orders dated 11.04.2023 and 24.05.2023, it is apparent that the Counsel for the Complainant had decided to forgo/leave Prayer No.(i) and had chosen to pursue/press the Complaint qua to Prayer No.(ii) to (vi) only.
22. Now, it is to be seen as to what is the effect and impact of leaving the Prayer Clause No.(i) as mentioned above.
23. Admittedly, the Complainant had paid an amount of ₹37,12,500/- towards the price of the Unit in dispute and this fact has also not been specifically denied by OPs No.1 to 4 in their reply. OPs No.1 to 4 had raised a specific objection that this Commission had no pecuniary to try and adjudicate the Complaint, as the total consideration of the Unit in dispute was ₹37,12,500/-, which is less than the limit of the pecuniary jurisdiction of this Commission i.e. ₹50 Consumer Complaint No.20 of 2023 14 lac.
24. Section 47 of the Act is relevant in the present context, which is reproduced as under:
"47. Jurisdiction of the State Commission.-
(1) Subject to the other provisions of this Act, the State Commission shall have jurisdiction--
(a) to entertain--
(i) Complaints where the value of the goods or services paid as consideration, exceeds rupees one crore, but does not exceed rupees ten crore:
Provided that where the Central Government deems it necessary so to do, it may prescribe such other value, as it deems fit;
(ii) Complaints against unfair contracts, where the value of goods or services paid as consideration does not exceed ten crore rupees;
(iii) appeals against the orders of any District Commission within the State; and
(b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any District Commission within the State, where it appears to the State Commission that such District Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity.
(2) The jurisdiction, powers and authority of the State Commission may be exercised by Benches thereof, and a Bench may be constituted by the President with one or more members as the President may deem fit:
Provided that the senior-most member shall preside over the Bench. (3) Where the members of a Bench differ in opinion on any point, the points shall be decided according to the opinion of the majority, if there is a majority, but if the members are equally divided, they shall state the point or points on which they differ, and make a reference to the President who shall either hear the point or points himself or refer the case for hearing on such point or points by one or more of the other members and such point or points shall be decided according to the opinion of the majority of the members who have heard the case, including those who first heard it:
Provided that the President or the other members, as the case may be, shall give opinion on the point or points so referred within a period of one month from the date of such reference. (4) A Complaint shall be instituted in a State Commission within the limits of whose jurisdiction,--
(a) the opposite party or each of the OPs, where there are more than one, at the time of the institution of the Complaint, ordinarily resides or carries on business or has a branch office or personally works for gain; or
(b) any of the OPs, where there are more than one, at the time of the institution of the Complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, Consumer Complaint No.20 of 2023 15 provided in such case, the permission of the State Commission is given; or
(c) the cause of action, wholly or in part, arises; or
(d) the Complainant resides or personally works for gain.
25. Initially, the Complainant had challenged the unfair terms of the contracts i.e. Flat Buyer's Agreement and the Allotment Letter and had sought to declare said contracts as null and void. Under section 47(1)(i) of the Act, earlier the State Commission had pecuniary jurisdiction to entertain a Complaint with the value of goods or services paid as consideration exceeding Rupees One Crore but not exceeding Rupees Ten Crore. As per Section 47(1)(ii) of the Act as reproduced above, it is specifically mentioned that the Complaint can be entertained by the State Commission against unfair contracts where the value of goods or services paid as consideration does not exceed ₹10 Crore. Later on, vide Notification dated 30.12.2021, the pecuniary jurisdiction of the District Commission, State Commission and National Commission was revised. As per Section-4 of said Notification, Section 47(1) (a) (i) of the Consumer Protection Act, 2019 was amended, which reads as under:
"4. Jurisdiction of the State Commission:-Subject to the other provisions of the Act and in pursuance of proviso to sub-clause (i) of clause (a) of sub-section (1) of Section 47, the State Commission shall be jurisdiction to entertain Complaints where the value of the goods or services paid as consideration exceeds fifty lakh but does not exceed two crore rupees."
26. However, under Section 47 (1) (a) (ii), minimum value of the goods or services paid has not been laid down, but maximum value of goods or services paid has been mentioned as not exceeding Consumer Complaint No.20 of 2023 16 ₹10 Crore. Section 49 of the Act is also relevant in the present context, which reads as under:
"49. Procedure applicable to State Commission. -
(1) The provisions relating to Complaints under sections 35, 36, 37, 38 and 39 shall, with such modifications as may be necessary, be applicable to the disposal of Complaints by the State Commission.
(2) Without prejudice to the provisions of sub-section (1), the State Commission may also declare any terms of contract, which is unfair to any consumer, to be null and void."
27. Thus, the State Commission, under section 47(1)(a)(ii) read with section 49 (2) of the Act, has the pecuniary jurisdiction to entertain and determine the issue of 'unfair contract' and can declare any term of the contract, which is unfair, as null and void. The Act has given said power to the State Commission and the Hon'ble National Commission only to examine the unfair terms of the Contract. However, this power has not been conferred upon the District Commissions.
28. By taking the shelter of section 47(1)(a)(ii) read with section 49 (2) of the Act, the Complaint was filed by the Complainant with specific Prayers including the main Prayer (i) to declare the Flat Buyer's Agreement and the Allotment Letter as illegal, null and void being one-sided and unfair contracts as defined under Section 2(46) of the Act. It is relevant to mention here that the Complaint was maintainable only with said Prayer (i), which had been forgone by the Counsel for the Complainant herself. Therefore, by virtue of leaving the Prayer Clause (i) by restricting the prayer Consumer Complaint No.20 of 2023 17 Clause qua to Prayer No.(ii) to (vi) only, the Complaint has come out of the purview of Section 47 (1) (a) (ii) read with Section 49(2) of the Act. As such, the pecuniary jurisdiction of this Commission has become barred, as the amount paid by the Complainant was only ₹37,12,500/-, which is less than the pecuniary jurisdiction of this Commission i.e. ₹50 lac. Learned Counsel for the Complainant has shifted his/her stand very smartly without caring for the relevant provisions of the Act just to take undue benefit and without caring about the consequences of leaving principal Prayer Clause (i). It cannot be said to be a bonafide mistake or ignorance of law by the Counsel, as the Counsel for the Complainant is quite senior/experienced. It was said in so many words that the Complainant had restricted his prayer qua to Prayer No.(ii) to (vi) only, as is apparent from the zimni orders as mentioned above. Therefore, the present request/Complaint is not maintainable before this Commission by the subsequent action of the Counsel for the Complainant. However, the said smart action of the Counsel is not fair and that too in the legal profession. The Counsel being the officer of the Court is supposed to be fair in his/her version while assisting the Court.
29. It is also relevant to mention that in the Complaint under Section 47(1)(a)(ii) read with Section 49 (2) of the Act, the prayer has been made to declare the contract as unfair being illegal, null and void and to cancel the same and in that eventuality, the refund of the deposited amount could be made if the Complaint succeeds. In such like Complaint, the prayer for delivery of possession is not Consumer Complaint No.20 of 2023 18 maintainable, as in case the contract is cancelled, then which contract remains in existence for delivery of possession of the Unit. Therefore, the Counsel for the Complainant has very smartly has omitted/left the main Prayer (i) and has adopted a bypass by pressing Prayers (ii) to
(vi) including Prayer (ii) for issuance of directions to the OPs to deliver the possession of the Unit or in the alternative to refund the deposited amount. After leaving/forgoing Clause (i), Prayer (ii) and other prayers could have been maintainable only if the total amount paid by the Complainant had exceeded ₹50 lac and the Complaint could have come within the purview of the pecuniary jurisdiction of this Commission. Said act and conduct of the Counsel for the Complainant is not appreciable in the legal field.
30. Keeping in view the reasons as well as the facts and circumstances as mentioned above, the present Complaint is dismissed being not maintainable after leaving the Prayer Clause
(i) and by restricting the prayer clause to Prayer No.(ii) to (vi) only. However, the Complainant is at liberty to file the Complaint before the appropriate Commission/Court having the jurisdiction. The Counsel for the Complainant is also advised to be fair to the Court in future.
31. Since the main case has been disposed of, so all the pending miscellaneous applications, if any, are accordingly disposed of.
Consumer Complaint No.20 of 2023 19
32. The Complaint could not be decided within the stipulated period due to heavy pendency of Court cases.
(JUSTICE DAYA CHAUDHARY) PRESIDENT January 30, 2024.
(Gurmeet S)