State Consumer Disputes Redressal Commission
M/S Taneja Developers And ... vs Rajinder Kumar on 1 March, 2016
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No. 1129 of 2015
Date of institution : 14.10.2015
Date of decision : 01.03.2016
1. M/s Taneja Developers & Infrastructure Ltd. (TDI City) having
its Regd. Office at 9 Kasturba Gandhi Marg, New Delhi 110001
through its authorized signatory, Rohit Gogia.
Second Address:-
SCO Nos.51-52, Sector 118, T.D.I. City, Kharar Road, Mohali.
2. The Chief Executive Officer, Regional Office, TDI City, SCO
51-52, Sector-118, TDI City, Mohali.
.......Appellants-Opposite Parties
Versus
Rajinder Kumar son of Bhagwan Dass, resident of H.No.385, Phase-
VII, Mohali.
........Respondent-Complainant
First Appeal against the order dated
24.7.2015 of the District Consumer
Disputes Redressal Forum, SAS Nagar,
Mohali.
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President
Shri Vinod Kumar Gupta, Member
Present:-
For the appellants : Shri Manoj Vashishtha, Advocate.
For the respondent : Ex parte.
JUSTICE GURDEV SINGH, PRESIDENT :
The appellants/opposite parties have preferred this appeal against the order dated 24.7.2015 passed by District Consumer Disputes Redressal Forum, SAS Nagar (Mohali) (in short, "District Forum"), vide which the complaint filed by Rajinder Kumar, respondent/complainant, under Section 12 of the Consumer First Appeal No.1129 of 2015 2 Protection Act, 1986 (in short, "the Act") was partly allowed and they were directed to pay him a lump sum compensation of Rs.1,00,000/- for harassment and mental agony suffered by him on account of delay of one and a half year in getting the peaceful, proper and effective possession of the floor in question.
2. The complainant alleged, in his complaint, that he booked one Flat of three bedrooms measuring 1460 square feet for a consideration of Rs.31,12,000/- in the housing project of the opposite parties, regarding which Agreement dated 21.12.2010 was executed. He was offered possession of Flat No.GF-52 subject to the payment of the balance amount within 30 days, vide Offer of Possession letter dated 11.4.2012. For obtaining the possession he deposited the entire amount, as stipulated by the opposite parties and possession letter dated 21.9.2012 was delivered to him in their office. When the offer was made to him to take physical possession, he showed his desire to check the Flat before taking the possession. When he went to that place, he found that the wooden flooring and paint on the walls of the Master Bedroom was damaged, doors and mesh door of living room were imperfect. On that account he did not accept the keys of the Flat and the officials of the opposite parties assured him to deliver the possession after the completion of the above said works as early as possible. Thereafter he visited the office of opposite party No.2 various times with the request to complete the work as per the specifications mentioned in the Agreement and to hand over the possession to him but the officials did not bother. Thereafter he sent e-mail to Luvdeep Saini and First Appeal No.1129 of 2015 3 Deepika Parmar on 1.7.2013 with letter of even date, as attachment, vide which he made the request to hand over the possession of the Flat to him after the completion of the specifications. After waiting for some time, he sent the second e-mail with attachment of reminder letter dated 26.9.2013. He also sent that letter through registered post but the actual possession of the Flat was not handed over to him after completing the specifications, as stipulated in the Agreement. As a result of fault on the part of the opposite parties he has been deprived of his right to reside in his own flat since 21.9.2012. For all this time he suffered a lot on account of the negligence and breach of conditions by the opposite parties. He served legal notice dated 30.11.2013, through his counsel, upon them again making request for handing over the possession of the Flat by providing the facilities as per the specifications and as stipulated in the Agreement and to pay a compensation of Rs.2.5 lakhs suffered by him on account of the payment of rent and harassment etc. That notice was never replied by the opposite parties. All these acts of omission on their part amount to deficiency in service. He prayed for the issuance of following directions to them:-
i) to complete the specifications made in the agreement before handing over the physical possession of the Flat;
ii) to pay Rs.2,50,000/-, so paid by him, as rent along with interest at the rate of 18% on account of the delayed possession;First Appeal No.1129 of 2015 4
iii) to pay Rs.20,000/-, as compensation for the mental and physical harassment; and
iv) to pay Rs.20,000/-, as litigation expenses.
3. The opposite parties contested the complaint and filed joint written reply before the District Forum, in which they admitted that Flat No.GF-52 was allotted to the complainant for which allotment letter dated 1.9.2010 was issued and the Agreement between them was executed on 21.12.2010. It was also admitted that the payments were made by the complainant towards the price of the Flat. While denying the other allegations made in the complaint, they averred that the complainant along with one Mrs. Nirmala Devi submitted application dated 23.3.2010 to opposite party No.1, through their broker M/s DSP Real Estate Private Limited, requesting for provisional allotment of built-up flat of 1460 square feet against the Basic Sale Price of Rs.29,75,000/- and tentative External Development Charges of Rs.1,37,500/-. Along with that application they deposited a sum of Rs.4,46,250/-, vide cheque dated 24.3.2010. They opted for Construction Linked Plan for making the payment of the balance sale price. Subsequently the complainant made an application for conversion of joint ownership to his sole ownership and the same was done accordingly. They pursued the construction work vigorously and that fact was being verified by the complainant by visiting the site of construction. It was only after visiting the site and verifying that fact on 10.1.2011 that he made the payment of Rs.6,80,000/-, vide four cheques of Rs.1,70,000/-, each. He did not follow the Payment Schedule while making the payments. First Appeal No.1129 of 2015 5 On 11.4.2012 the possession of the built-up floor was offered to him and at that time he was in arrears to the tune of Rs.10,65,830/- and he was requested to make the payment of those arrears within a period of 30 days and to take the possession. He did not come forward to make that payment within 30 days and was not having sufficient funds to make that payment. Reminder letters dated 6.6.2012, 26.6.2012, 13.7.2012 and 31.7.2012 were written to him but he did not come to take the possession. In the month of July 2012 he made the payment of Rs.45,000/- and assured himself about the quality of the construction and specifications of the built-up floor. He again came in August 2012 and made the payment of the outstanding dues after verifying the quality of construction and the specifications of the built-up floor. After that satisfaction he took the possession of the Flat and signed the letter. There was no deficiency in service on their part. The complainant is not a potential user of the Flat and the complaint has been filed by him in order to avoid his liability to make payment of holding charges. After receiving the possession of the Flat on 21.9.2012 he had put his signatures on the letter of possession. They have nothing to do, if he had not shifted to that flat after taking the possession. He is not a 'consumer' within the meaning of Section 2(1)(d) of the Act, as he made the investment in the Flat for earning premium. He sought possession of the built-up flat after completion of the specifications and the Basic Sale Price being more than Rs.20,00,000/-, the District Forum has no pecuniary jurisdiction to adjudicate upon the complaint. Various disputed questions of facts are involved in the First Appeal No.1129 of 2015 6 present complaint, which cannot be adjudicated upon by the District Forum in its summary jurisdiction and the complainant can file a civil suit before the Civil Court, in case he has any grouse against them. The complainant earlier filed 'consumer complaint' on the same cause of action, which was withdrawn by him without liberty to file the present complaint and, as such, the same is not maintainable. They prayed for the dismissal of the complaint with heavy costs.
4. Both the sides produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf allowed the complaint, vide aforesaid order.
5. We have heard learned counsel for the opposite parties, as the respondent did not appear before this Commission in-spite of his service and was proceeded against ex parte. We have also carefully gone through the records of the District Forum.
6. The opposite parties in their written reply took up the specific plea that the District Forum had no pecuniary jurisdiction to entertain and try the complaint, as the sale price of the flat was more than Rs.20,00,000/- and the possession of the flat had been sought. The District Forum before entering into the arena of the merits of the complaint was required to record its finding as to whether it had the pecuniary jurisdiction to entertain the complaint. It is very much clear from the first direction sought for by the complainant that he asked for possession of the flat after the completion thereof as per the specifications mentioned in the Agreement. Therefore, for the purposes of pecuniary jurisdiction the sale price of the flat was to be First Appeal No.1129 of 2015 7 taken into consideration, along with the other amounts claimed by the complainant, as compensation. Admittedly the sale price of the flat was more than Rs.20,00,000/-. Therefore, the District Forum had no pecuniary jurisdiction to entertain the complaint. The order passed by it is liable to be set aside on that ground itself.
7. Accordingly the appeal is allowed and the order passed by the District Forum is set aside. The complaint filed by the complainant is rejected without prejudice to his rights to file a fresh complaint on the same cause of action before the appropriate Fora.
8. The appellants/opposite parties deposited the sum of Rs.25,000/- at the time of filing of the appeal on 14.10.2015. They deposited another sum of Rs.25,000/- on 8.12.2015 in compliance of the order dated 1.12.2015. Both these sums along with interest which has accrued thereon, if any, shall be remitted by the registry to appellant/opposite party No.1 by way of a crossed cheque/demand draft after the expiry of 45 days of the sending of certified copy of the order to them, as per the undertaking given by them.
9. The arguments in this case were heard on 23.2.2016 and the order was reserved. Now, the order be communicated to the parties.
10. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE GURDEV SINGH) PRESIDENT (VINOD KUMAR GUPTA) MEMBER March 01, 2016 Bansal