State Consumer Disputes Redressal Commission
Shivalik Vihar Sites Pvt. Ltd. ... vs Gurcharan Singh on 21 July, 2011
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U STATE CONSUMER DISPUTES REDRESSAL COMMISSION U.T., CHANDIGARH First Appeal No. : 366 of 2010 Date of Institution : 06.10.2010 Date of Decision : 21.07.2011 Shivalik Vihar Sites Pvt. Ltd. Kharar(Mohali), through its Managing Director Anil Kumar. Appellant. V e r s u s Gurcharan Singh son of Late Shri Niranjan Singh, resident of House No.822, Top Floor, Phase 10, Mohali (SAS Nagar) ....Respondent. Appeal under Sections 15 and 17 of Consumer Protection Act, 1986 Argued by: Sh.O.P.Narang, Advocate for the appellant. Sh.K.P.Singh, Advocate for the respondent. First Appeal No. : 367 of 2010 Date of Institution : 06.10.2010 Date of Decision : 21.07.2011 Shivalik Vihar Sites Pvt. Ltd. Kharar(Mohali), through its Managing Director Anil Kumar. Appellant. V e r s u s Darshan Singh, S/o Shri Santa Singh, resident of House No.2070/2, Sector 47-C, Chandigarh. ....Respondent. Appeal under Sections 15 and 17 of Consumer Protection Act, 1986 Argued by: Sh.O.P.Narang, Advocate for the appellant. Sh.K.P.Singh, Advocate for the respondent. BEFORE: HONBLE MR. JUSTICE SHAM SUNDER, PRESIDENT. MRS. NEENA SANDHU, MEMBER.
PER HONBLE MR. JUSTICE SHAM SUNDER, PRESIDENT
1. This order shall dispose of the aforesaid two appeals, involving the common question of law and facts, directed against the order dated 28.07.2010, rendered by the District Consumer Disputes Redressal Forum-1, U.T., Chandigarh (hereinafter to be called as District Forum only), vide which it accepted the Consumer Complaint No.1500 of 2009-Gurcharan Singh Vs. Shivalik Vihar Sites Pvt. Ltd. & Ors. and Consumer Complaint No.1501 of 2009-Darshan Singh Vs. Shivalik Vihar Sites Pvt. Ltd. & Ors. and the following directions were given to OP Nos.1,3 and 4:-
(a) The OPs shall hand over the possession of the flat in question to the complainant within a period of 10 months from the date of filing of the present complaint i.e. by 18.9.2010 alongwith litigation costs of Rs.5,500/-;
OR
(b) The OPs shall refund the deposited amount of Rs.9,78,129/- alongwith Rs.5,500/- as costs of litigation within thirty days from the date of receipt of copy of the order.
(c) The OPs shall pay within thirty days from the receipt of copy of the order interest as damages @ 9% per annum on the amount of Rs.9,78,129/- w.e.f. the date of deposit till the possession is delivered or the amount of Rs.9,78,129/- is refunded to the complainant.
In case the OPs fail to comply with the directions (a) or (b), they shall be liable to refund the entire amount with penal interest @ 12% per annum from the date of deposit i.e. 22.11.2005 till payment is actually made to the complainant. In case direction (c) is not complied with within thirty days, the OPs shall be liable to pay the same with penal interest @ 12% per annum w.e.f. the date the monthly payments became due till the date of actual payment to the complainant.
Similar directions were given in connected Consumer Complaint No.1501 of 2009 titled as Darshan Singh Vs. Shivalik Vihar Sites Pvt. Ltd. & Ors. The complaint against OP Nos.2,5 and 6, was dismissed with no order as to costs.
2. The facts, in brief, as reflected, in Consumer Complaint Case No.1500 of 2009 Gurcharan Singh Vs. Shivalik Vihar Sites Pvt. Ltd. & Ors., proceed, in the manner, that OP Nos.1 to 5 launched a scheme in the open market for selling their apartments, under the name and style of Shivalik Apartments at Kharar. On being convinced by OP No.6(in the original complaint), the complainant(now respondent) deposited a sum of Rs.9,78,129/-, for allotment of a flat on the 4th floor. As per clause 4 of the allotment letter dated 7.1.2006, the Ops, were to hand over the possession, on or before 7.2.2007, but they failed to do so.
Lateron, the complainant came to know that the OPs were not having the permission, from the Punjab Govt., for building residential apartments. He approached the OPs a number of times, but they flatly refused to either give him the flat or refund the amount deposited by him. It was stated by the complainant that the aforesaid acts of the OPs amounted to deficiency in rendering service and indulgence into unfair trade practice.
3. Consumer Complaint No.1501 of 2009 titled as Darshan Singh Vs. Shivalik Vihar Sites Pvt. Ltd. & Ors. In this complaint also the complainant deposited Rs.9,78,129/- with the OPs for the allotment of a flat. He was not handed over the possession, by the stipulated date.
4. When the grievances of the complainants were not redressed, left with no other alternative, they had to file the complaints, referred to above under section 12 of the Consumer Protection Act, 1986 (hereinafter called as Act only).
5. In written reply, OPs 1,3 & 4 admitted the factual matrix of the case. It was denied that the payment made by the complainant, was towards full and final price of the flat. It was admitted that though the possession was to be handed over, on or before 07.02.2007, yet as per Clause 4 of the allotment letter, the same was subject to force majeure clause. It was further stated that due to recession, the OPs were unable to hand over the possession, as the construction had been stopped. It was further stated that, since now the recession had ceased, the construction was in full swing, and the OPs, would handover possession within 10 months, from the date of decision of the complaints. It was denied that the OPs were deficient in rendering service or indulged into unfair trade practice. All other averments were denied, being wrong.
6. OPs 2 & 5 did not appear despite due service, hence they were proceeded against exparte.
7. OP-6 in his written reply, specifically denied that he ever acted as a dealer or helped the OPs in finding customers. It was stated that he only accompanied the complainant to the OPs. It was denied that the flat was booked through him, or that payment of Rs.10,000/-, as commission, was made to him. It was also denied that he ever assured to hand over possession, as alleged. It was denied that OP-6 was deficient, in rendering service, or indulged into unfair trade practice. All other averments were denied, being wrong.
8. The parties led evidence, in support of their cases.
9. After hearing the Counsel for the contesting parties, and, OP-6 and on going through the evidence, on record, the District Forum, passed the order in both the complaints, in the manner referred to, in the opening para of the instant order.
10. Feeling aggrieved, the aforesaid two appeals, were filed by the appellant/OP i.e. Shivalik Vihar Sites Pvt. Ltd. Kharar, through its Managing Director Anil Kumar.
11. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, very carefully.
12. The Counsel for the appellant, submitted that Gurcharan Singh and Darshan Singh had earlier filed Civil Suits for Permanent Injunction for restraining the OPs from transferring the property in dispute, to any other person, except the complainants, wherein status-quo order was passed and, therefore, the District Forum had no jurisdiction to entertain and decide the complaints nor the possession could be delivered, in the face of such status-quo orders. He further submitted at the time of arguments, that the appellant/OP was ready to handover possession of the flats to the complainants/respondents, but they were not ready to accept the same. He also submitted that, on account of recession also, the construction of the flats was delayed, and, as such, the appellant was entitled to invoke force majeure clause, contained in the allotment letter, for extension of time for the construction of flats and delivery of possession thereof. He further submitted that, as such, the appellant was not deficient in rendering service nor it indulged into unfair trade practice.
13. On the other hand, the Counsel for the respondent, submitted that the respondents/complainants deposited a sum of Rs.9,78,129/-, each with the OPs for allotment of a flat each on the 4th floor. He further submitted that the draft allotment letter dated 07.01.2006, was issued by the appellant, wherein, it was admitted that the aforesaid amount, being booking amount, would be adjusted in the total price of the flat. He further submitted that as per the allotment letter, the possession of the flat was to be delivered, on or before 07.02.2007, but it was not delivered to the respondents/complainants. He further submitted that it was not that on account of the circumstances, beyond the control of the appellant, that the construction of flats could not be raised, and the possession could not be delivered. He further submitted that the appellant could not take shelter, under the force majeure clause, contained in the allotment letter. He further submitted that the mere fact that Gurcharan Singh and Darshan Singh, complainants/respondent filed Civil Suits, in the Civil Court, at Kharar and status-quo orders were granted therein, regarding alienation did not mean that the appellant in both the appeals was restrained from handing over the possession of the flats to the complainants/respondents. He further submitted that the status-quo orders, could operate against the third parties, and not against the complainants. He further submitted that District Forum had Jurisdiction to entertain and decide the complaints. He further submitted that the District Forum was right in holding that OPs 1,3 and 4, were deficient in rendering service, by neither handing over the possession of the flat to the complainant nor refunding the amount. He further submitted that, the order passed by the District Forum, being legal and valid is liable to be upheld.
14. In both the appeals, applications were filed by the appellants that both the complainants filed Civil Suits against the OP/appellant, with respect to the property in question and status-quo orders regarding alienation were passed therein. It was further stated that production of the copies of the plaints (a few pages) filed in those suits, as also, status-quo orders, passed therein was essential for the just decision of both the appeals.
15. In our considered opinion, the applications are liable to be accepted, for the reasons to be recorded hereinafter. The copies of the plaints(few pages) and the status-quo orders, passed by the Civil Court, in the suits, form part of the Judicial record. These documents, therefore, could not be said to be fabricated. These documents are essential for the just decision of the appeals. Accordingly, both the applications are allowed and the documents i.e. copies of plaint(four pages) and the orders dated 24.12.2009 and 19.03.2010 as Annexures A1 and A2, A3 and A4(now marked), are taken on record.
16. Now coming to both the appeals, in our considered opinion, the same are liable to be dismissed for the reasons to be recorded, hereinafter. There is, no dispute, about the factum, that the complainants/ respondents applied for the allotment of flats to the OPs/appellant, and deposited a sum of Rs.9,78,129/- each as booking amount. Annexure 3 is a copy of the draft allotment letter dated 07.01.2006, issued by the appellant/OP admitting therein that the amount of Rs.9,78,129/- each had been deposited by the complaints/respondents, towards the booking amount. As per this allotment letter the delivery of possession of the flats was to be handed over to the complainants, on or before 07.02.2007. However, no flats were constructed, by that time, nor the question of delivery of possession thereof, could arise. There is nothing, on the record, that on account of the circumstances beyond the control of the OP/appellant, that neither the flats could be constructed, in time, nor the delivery of possession of the same, could be made on or before 07.02.2007 to the complainants. Even if, it is assumed, for the sake of arguments, that there was recession, in the market, that did not permit the OP/appellant to invoke the force majeure clause, contained in the allotment letter. At the time of taking the building activity, the builder always knows that there could be change in the trend of the market. The prices of the property can either fall or rise. That circumstances could not be said to be such, as could, permit the builder, either to stop raising construction of the flats allotted, in respect whereof substantial amount has already been paid by the prospective buyers, or not to refund the amount collected from them. The builder cannot fleece the innocent buyers, by concocting an excuse, that, on account of the circumstances, beyond his control, he could not complete construction in time. The District Forum was, thus, right in holding that the OPs/appellant could not take benefit of force majeure clause. The District Forum was also right in holding that the appellant was deficient, in rendering service. The District Forum was also right in directing the OP, either to handover the possession of the flat, or refund the amount, deposited by the complainants, with interest.
17. Coming to the submission of the Counsel for the appellant, that since the complainants had already filed the Civil suits for Permanent Injunction, against the OP/appellant, in which the status-quo orders regarding alienation A2 dated 24.12.2009 and A4 dated 19.03.2010 had been passed, and, as such, the appellant could not deliver possession of the flats, it may be stated here, that such an argument is completely misconceived. Status-quo orders, regarding alienation, which were granted by the Civil Court, were against the third parties. These could not operate against the complainant/respondent. Under these circumstances, those orders, as rightly held by the District Forum, did not stand in its way, in granting relief under the relevant provisions of law. The submission of the Counsel for the appellant, being devoid of merit, must fail, and the same is accordingly rejected.
18. The next question, that falls for consideration, is, as to whether, in the face of the pendency of the Civil Suits already filed by the complainants, in which the aforesaid status-quo orders were passed, a Consumer Complaint, under Section 12 of the Act, was maintainable or not. As per Section 3 of the Consumer Protection Act, the remedy, thereunder, has been provided, in addition to any other remedy available to the complainant. Under these circumstances, even in the face of filing of the Civil suits for permanent injunction, against the OP/appellant by the complainants, in the Civil Court, wherein the aforesaid orders were passed, the Consumer Forum had jurisdiction to entertain the complaint, and decide the same. In Consumer Complaints, the Forums are required to see, as to whether, there was deficiency in rendering service by the Ops, or they indulged into unfair trade practice. The District Forum was, thus, right in holding that mere filing of the aforesaid suits, wherein status-quo orders were passed, did not bar the remedy of instituting the Consumer Complaints. The submission of the Counsel for the appellant, being devoid of merit, stands rejected.
19. It is evident from para 12 of the order of the District Forum that the OPs, in their written statement, stated that they were ready to handover the possession within 10 months from the date of decision by it(Forum). The District Forum decided the complaint on 28.07.2010, and till date the possession has not been delivered . It was in view of the undertaking given by the OPs, in their written replies, and in the interest of justice, that the District Forum, granted 10 months time from the date of filing the complaints i.e.17.11.2009 to handover the possession of flats to the complainants. However, that order was not complied with.
20. The order passed by the District Forum does not suffer from any illegality or perversity, warranting the interference of this Commission.
21. For the reasons recorded above, both the appeals, being devoid of merit, must fail, and the same are dismissed with costs, quantified at Rs.3,000/-, each (i.e. in each appeal). The order of the District Forum is upheld.
22. A complete copy of the order be placed in the appeal file no.367 of 2010.
23. Certified Copies of this order be sent to the parties, free of charge.
24. The file be consigned to record room.
Pronounced.
21.07.2011 Sd/-
[JUSTICE SHAM SUNDER] PRESIDENT Sd/-
[NEENA SANDHU] MEMBER