National Consumer Disputes Redressal
Ansal Properties & Infrastructure Ltd. vs Nidhi Jain on 5 July, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1980 OF 2013 With (I.A. No. 3268 of 2013 for Stay) (From order dated 18.03.2013 in First Appeal No.1365 of 2012 of the State Consumer Disputes Redressal Commission, Haryana) Ansal Properties & Infrastructure Ltd. 115 Ansal Bhawan,16 Kasturba Gandhi Marg, New Delhi-110001 ...Petitioner Versus Nidhi Jain w/o of Shri Parshant Kumar R/o A-171, Prashant Vihar, Delhi-110085. Respondent Nitin Jain S/o Ashok Jain, (R/o A-171, Prashant Vihar, Delhi-110085 ......(through Attorney Holder) Vijay Kumar Jain S/o Shri Nihal Chand Jain, R/o 3346, Bankeders Enclave, Sector-55 D, Chandigarh .....(through Attorney Holder) BEFORE: HONBLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER HONBLE MRS. REKHA GUPTA, MEMBER For the Petitioner :Mr.Saurabh Taneja, Authorized Representative Pronounced on: 5th July, 2013 ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER Being aggrieved by the impugned order dated 18.3.2013 passed by State Consumer Disputes Redressal Commission, Haryana, Panchkula (for short, State Commission), Petitioner/O.P. has filed the present revision petition.
2. Brief facts are that respondent/complainant booked a flat situated at the Europa Residency, Kundli, Sonepat which was provided by the petitioner. It is alleged that at the time of booking of the above said flat, respondent deposited an amount of Rs.90,000/- and thereafter she also deposited Rs.90,500/-, Rs.87,750/-, Rs.87,750/- and Rs.1,75,500/- i.e. total amount of Rs.5,31,500/- on different dates upto 21.5.2010 with the petitioner against proper receipts and petitioner also gave brochure of the flats scheme to her.
3. It is also alleged that at the time of booking of the flats, petitioner assured the respondent that they will construct/prepare above said flats within a period of 36 months as mentioned in para no. 10.1. a of the brochure and will construct the flats according to the norms of the brochure. However, it was surprising for the respondent that petitioner not only is unable to handover the possession but also it has not started the construction work of flats till today, which shows that the petitioner has not fulfilled the terms and conditions of the Government of Haryana and he was not fully authorized to construct the flats within a stipulated period. Thus, petitioner not only cheated the respondent by way of abstracting money from the respondent but also played fraud upon the respondent.
4. It is further alleged that when petitioner did not start the construction work on the site, the respondent wrote several letters and brought the deficiency/negligence to the knowledge of the petitioner. However, petitioner neither started the construction work of the flats nor replied the letters of the respondent. Hence, respondent filed consumer complaint seeking the following reliefs;
i) To make the interest @24% per annum to the complainant from the date of booking the flat and thereafter i.e. 18.1.2010 to 25.11.2010 till the date of possession of the flat.
ii) To provide compensation of Rs.10,000/- per month for not handing over the possession of the flat in time to the complainant till the date of delivery of the possession.
iii) To complete the construction work within 6 months from filing the present complaint.
iv) To make payment of Rs.50,000/- on account of deficiency in service on the part of the respondent and on account of sufferings, mental agony, transportation, humiliation etc.
v) To pay Rs.22,000/- as litigation expenses.
5. Petitioner in its written statement has not denied the averments as made by the respondent in para nos. 2 and 3 of its complaint with regard to the booking of the flat as well as deposit of total amount of Rs.5,31,500/-. However, it is alleged that petitioner did not assure the respondent that the construction work will be completed within 36 months. It is pertinent to mention that respondent did not execute the Flat Buyers Agreement with the petitioner. As per terms and condition of the agreement, as per term No. 12 the company shall endeavour to offer the possession of Apartment within 3 years from the date of sanction of building plans by the authorities subject to majeure circumstances and on receipt of all payments punctually as per agreed terms and on receipt of complete payment of the basic sale price.....
6. Further as per term no.13 of the agreement if the construction of the premises is delayed due to force majeure circumstances which interalia include delay on account of non availability of building materials, or water supply or electric power or slow down strike or due to a dispute with the construction agency, civil commotion, or by reason of war or enemy action or earth quake or any act of God, delay in certain decision/clearances from statutory body, or if non delivery of possession is as a result of any notice, order, rules or notification of the Government and/or any other public or any competent authority or for any other reason beyond the control of the company, then in any of the aforesaid event, the company shall be entitled to a reasonable corresponding extension of the time of delivery of the said premises on account of the force majeure circumstances. Further, in consequences of the company abandoning the scheme, the companys liability shall be limited to refund the amount paid by the allottee without any interest. No compensation whatsoever shall be payable.
7. District Consumer Disputes Redressal Forum, Sonepat (for short, District Forum) vide order dated 23.10.2012, allowed the complaint.
8. Being aggrieved by the order of District Forum, petitioner filed appeal before the State Commission, which vide its impugned order dismissed the same.
9. Hence, this revision.
10. We have heard Mr. Saurabh Taneja, Authorized Representative of petitioner-company and have gone through the record.
11. It has been stated by A.R. of the petitioner that District Forum as well as the State Commission have ignored the fact that the project itself admittedly has not yet taken off and due to certain development at the level of the government the same may never come up. In the light of the above directions regarding handing over of a flat that is not and may never be constructed, is patently wrong and unsustainable. Another argument advanced on behalf of the petitioner is that respondent has not executed the Flat Buyers Agreement with the petitioner and in the absence of execution of such Agreement or any contractual obligation, both the fora erred in passing the impugned orders.
12. District Forum, while allowing the complaint in its order held;
4. After giving thoughtful consideration to each and every aspect of this complaint, reply, points argued by the learned counsel for the parties at length and after perusing the documents very carefully and minutely, this Forum is of the view that the ends of justice would be fully met if the directions are given to the respondents to pay interest to the complainant for not handing over the possession of the flat in time to the complainant and the respondents are utilizing the huge amount of the complainant without providing any services to the complainant and the respondents have no right to utilize the amount of the complainant without providing any services to her. Accordingly, we direct the respondents to pay interest to the complainant on the amount deposited by her during the period w.e.f. 18.1.2010 to 25.11.2010 at the rate of 9% per annum from the date 18.1.2010 to 25.11.2010 till the date of possession of the flat and further to compensate the complainant to the tune of Rs.1,000/-(Rs. One thousand) for rendering deficient services, for causing unnecessary mental agony & harassment and under the head of litigation expenses.
13. State Commission while upholding the order of District Forum, in its impugned order observed;
On behalf of the appellant it was argued that the complaint filed by the complainant was premature having been filed before the expiry of 36 months and thus was liable to be dismissed.
During hearing, the appellant was asked to verify as to whether the construction work of the project was complete by now, when 36 months have already expired, to which the reply was in negative. Thus, it is established on the record that the opposite parties have failed to fulfil the terms of the agreement with respect of the allotment of the flat to the complainant and therefore no case for interference in the impugned order is made out. The complainant, who had deposited the huge amount with the opposite parties, is certainly entitled to interest on the same for the delayed period in delivery of possession to the complainant.
In view of the above, this appeal is dismissed being devoid of any merit.
14. This plea taken by the petitioner in its revision petition that due to certain development at the level of the government the project itself has not taken off and as such directions regarding handing over of a flat are patently wrong, are absolutely false on the face of it, in view of the Apartment Allottees Agreement which has been relied upon by the petitioner. As per Clause 2 A of this agreement, the petitioner had started the development of THE EUROPA RESIDENCY which was duly approved by the Government of Haryana and this Clause read as under;
WHEREAS the Company has been developing an integrated Group Housing Complex/Apartment over a piece and parcel of land admeasuring 5.85 acres approx. in the revenue estate of Village Badkhalsa, Tehsil and District Sonepat, Haryana, hereinafter referred to as the Group Housing Project Land in the name and style of THE EUROPA RESIDENCY which also situated within the colony, namely SUSHANT CITY, KUNDLI, being developed by the COMPANY and duly approved by the Govt. of Haryana.
15. In view of petitioners own documents, now it does not lie in its mouth to take this plea, that the State Government has not approved the Scheme. With regard to the execution of the Buyers Agreement, there is nothing on record to show that petitioner ever asked or gave any notice to the respondent, to execute the Buyer Agreement or respondent had ever refused to execute that agreement.
16. Present revision petition has been filed under Section 21(b) of the Consumer Protection Act,1986 (for short, Act). It is well settled that the powers of this Commission as a Revisional Court are very limited and have to be exercised only, if there is some prima facie jurisdictional error in the impugned order.
17. Honble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. 2011 (3) Scale 654 has observed ;
Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts.
This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora.
18. Petitioner/builder in the present case wants to have the cake and eat it too as admittedly it has already received a sum of Rs.5,31,500/- towards the cost of the flat. Thus, petitioner being the builder is enjoying the huge amount deposited by the respondent without any hindrance. On the other hand, respondent having paid substantial amount of consideration is still without any roof.
19. Such type of unscrupulous act on the part of petitioner/builder should be dealt with heavy hands, who after grabbing the money from the purchaser, enjoy and utilize their money but does not hand over the flat, on one pretext or the other. Petitioner has made respondent run from one fora to other so that respondent cannot have any roof over her head and petitioner can go on enjoying respondents money without any hindrance.
20. Thus, no jurisdiction or legal error has been shown to us to call for interference in the exercise of power under section 21 (b) of the Act, since, two fora below have given cogent reasons in their orders, which does not call for any interference nor they suffer from any infirmity or revisional exercise of jurisdiction.
21. In Ravinder Kaur Vs. Ashok Kumar, AIR 2004 SC 904, Apex Court observed ;
Courts of law should be careful enough to see through such diabolical plans of the judgment debtor to deny the decree holders the fruits of the decree obtained by them. These type of errors on the part of the judicial forum only encourage frivolous and cantankerous litigations causing laws delay and bringing bad name to the judicial system.
22. It is well settled that no leniency should be shown to such type of litigants who in order to cover up their own fault and negligence, goes on filing meritless petitions in different foras. Time and again Courts have held that if any litigant approaches the Court of equity with unclean hands, suppress the material facts, make false averments in the written statement and tries to mislead and hoodwink the judicial Forums, then its defence should be thrown away at the threshold. Equity demands that such unscrupulous litigants whose only aim and object is to deprive the opposite party of the fruits of the decree must be dealt with heavy hands. Unscrupulous builders like petitioner who after taking entire cost of the flat do not perform its part of obligation, should not be spared. A strong message is required to be sent to such type of builders that this Commission is not helpless in such type of matters.
23. Now question arises for consideration is as to what should be the quantum of costs which should be imposed upon the petitioner for dragging the respondent upto this fora. It is not that every order passed by the judicial fora is to be challenged by the litigant even if the same is based on sound reasonings.
24. Apex Court in Ramrameshwari Devi and Ors.
Vs. Nirmala Devi and Ors., Civil Appeal Nos.4912-4913 of 2011 decided on July 4, 2011 has observed ;
45. We are clearly of the view that unless we ensure that wrongdoers are denied profit or undue benefit from the frivolous litigation, it would be difficult to control frivolous and uncalled for litigations. In order to curb uncalled for and frivolous litigation, the Courts have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that courts otherwise scarce and valuable time is consumed or more appropriately wasted in a large number of uncalled for cases.
Apex Court further held;
It is also a matter of common experience that to achieve clandestine objects, false pleas are often taken and forged documents are filed indiscriminately in our courts because they have hardly any apprehension of being prosecuted for perjury by the courts or even pay heavy costs. In Swaran Singh Vs. State of Punjab (2000) 5 SCC 668 this court was constrained to observe that perjury has become a way of life in our courts.
It is a typical example how a litigation proceeds and continues and in the end there is a profit for the wrongdoers.
Learned Amicus articulated common mans general impression about litigation in following words :
Make any false averment, conceal any fact, raise any plea, produce any false document, deny any genuine document, it will successfully stall the litigation, and in any case, delay the matter endlessly. The other party will be coerced into a settlement which will be profitable for me and the probability of the court ordering prosecution for perjury is less than that of meeting with an accident while crossing the road.
25.
Thus, in our opinion, the present petition is nothing but a gross abuse of the process of law and the revision petition is totally meritless and frivolous, which is required to be dismissed with punitive costs of Rs.1,00,000/-(One lakh only). Accordingly, we dismiss the present petition with costs of Rs.1,00,000/- (Rupees One lakh only).
26. Out of the costs imposed upon the petitioner, Rs.50,000/-(Rupees Fifty Thousand only) be paid to respondent no.1Nidhi Jain by way of demand draft in her name. Remaining costs of Rs.50,000/- (Rupees Fifty Thousand only) be deposited by way of demand draft in the name of Consumer Legal Aid Account of this Commission, within one month from today.
27. In case, petitioner fails to deposit the aforesaid costs within the prescribed period, then it shall also be liable to pay interest @ 9% p.a., till realization.
28. Costs awarded to respondent no. 1 shall be paid only after expiry of the period of appeal or revision preferred, if any.
29. Pending application also stands disposed of.
30. List on 23.08.2013 for compliance.
..J (V.B. GUPTA) ( PRESIDING MEMBER) (REKHA GUPTA) MEMBER SSB