National Consumer Disputes Redressal
Gtm Builder & Promoters Pvt. Ltd. vs Anuja Goyal on 20 April, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2442 OF 2013 (Against the Order dated 05/06/2013 in Appeal No. 1236/2012 of the State Commission Haryana) WITH IA/2741/2014,IA/3326/2014,IA/3327/2014,IA/4047/2013 1. GTM BUILDER & PROMOTERS PVT. LTD. GTM HOUSE , G-5 PUSHKAR ENCLAVE, OUTER RING ROAD, PASCHIM VIHAR NEW DELHI ...........Petitioner(s) Versus 1. ANUJA GOYAL D/O M.C GOEL, HOUSE NO-2, UNIWORLD CITY, SECTOR-30 GURGAON HARYANA ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
For the Petitioner : Mr. Kirti Uppal, Sr. Advocate
Assisted by Mr. Somesh Chandra Jha, Advocate
Mr. Anshuman Sahni, Advocate
Ms. Aastha Dhawan, Advocate For the Respondent : Mr. Vivek Sibal, Advocate
Alongwith Mr. Arun Mishra, Advocate
Dated : 20 Apr 2015 ORDER
JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
1. This revision is directed against the order of the State Commission, Haryana dated 05.06.2013 whereby the State Commission dismissed the appeal of the petitioner opposite party against the order of the District Forum Gurgaon dated 19.09.2012 whereby the District Forum allowed the consumer complaint of the respondent complainant with following directions:
"The complaint succeeds and the Ops are directed to deliver physical possession of the flat to the complainant. The complainant is also entitled to interest @ 10% p.a. on the amounts deposited by her to the OP from the date of each deposit till the delivery of physical possession. The complainant is also directed to pay the balance amount, if any, at the time of taking physical possession of the flat.
The complainant has been harassed and caused mental agony, thus, she is entitled to compensation of Rs.20000.00 besides litigation expenses of Rs.5000.00. Compliance of the order be made within 30 days."
2. Briefly put the facts relevant for the disposal of the revision petition are that complainant pursuant to the advertisement issued by the petitioner opposite party, booked flat No. 501, 5th Floor, Tower No-11 in "GTM Residency Tower"-Valley View Estate, Gurgaon, a development project undertaken by the petitioner. The total consideration amount agreed between the parties was Rs.29,98,500/- which included one open parking and the free parking. Against the consideration amount, the petitioner paid a sum of Rs.28,07,500/- vide receipts dated 16.01.2005, 26.01.2005, 4.5.2005 and 25.11.2010. As per the agreement, super area of the plot was 2530 sq. ft and the floor area was 1959 sq. ft. Since the complainant had opted for down payment plan, she as per the agreement, was entitled to discount.
3. The grievance of the complainant before the District forum was that as per the condition no.13 of the agreement dated 16.01.2005, the petitioner opposite party was supposed to deliver possession of the flat within 30 months from the date of agreement subject to Force Majeure circumstances. The opposite party, however, failed to deliver possession of the flat. The complainant allegedly contacted the opposite party in this regard and upon inquiry the project manager of OP No.1 ( OP No.2 before the District Forum) failed to give satisfactory reply. It is also the case of the complainant that as per the agreement, the complainant was entitled to 10 % rebate under the down payment plan but she has been given only 4% rebate on cash down payment. Claiming the failure of the opposite party to delivery possession within the stipulated period, the respondent filed a consumer complaint before the District Forum.
4. The opposite parties resisted the complaint. In the written statement, they admitted that the respondent complainant had booked the subject flat and made substantial payment against the agreed consideration amount. The opposite parties admitted that as per the terms and conditions of the agreement dated 16.01.2005, the had agreed to deliver the possession of the flat to the complainant within 30 months from the date of agreement. The opposite parties, however pleaded that the delivery of possession within the stipulated time was subject to Force majeure. According to the opposite party, delay in delivery of possession of flat has occurred because of Force Majeure circumstances , namely, non availability of steel, cement, other building material, water supply, slow down strike and also due to the dispute with construction agency etc. It was pleaded that opposite parties had a dispute with the construction contractor which has been referred to the Arbitrator. Subsequently, an agreement dated 31.07.2006 was executed between the opposite party and the contractor vide which contractor agreed to finish the construction work in time subject to the opposite parties paying Rs. 1.25 crores against the escalation cost. The opposite parties denied that the complainant was not entitled to 10% rebate as per the payment plan. Thus, in the nutshell the opposite party pleaded that the delay in delivery of possession has occurred because of the circumstances not within the control of the opposite party and the opposite party has not committed any deficiency in service.
5. Learned District Forum on consideration of pleadings and perusal of evidence allowed the complaint and directed the opposite party as directed above.
6. Feeling aggrieved by the order of the District Forum, the petitioner approached the State Commission Haryana in appeal. The State Commission vide impugned order dismissed the appeal with cost of Rs.50,000/-. This has led to filing of the revision petition.
7. Learned Shri Kirti Uppal, Senior Advocate for the petitioner has firstly contended that the impugned order of the State Commission is not sustainable for that the State Commission has failed to appreciate that the value of the relief claimed in the consumer complaint was much higher than the pecuniary jurisdiction of the District Forum as envisaged under section 11 (1) of the Consumer Protection Act, 1986 ( in short, the Act) and as such, the consumer complaint itself was not maintainable and the District Forum had passed the order against the petitioner without jurisdiction. In support of this contention, learned counsel for the petitioner has referred to the judgment of the Supreme Court in the matter of Charan Singh Vs. Healing Touch Hospital & Others (2000) 7 SCC 668.
8. Learned counsel for the respondent on the contrary has argued in support of the impugned order. He has contended that it is well settled that the objections as to territorial and pecuniary jurisdiction have to be taken at the earliest possible opportunity and such an application cannot be allowed to be taken at a subsequent stage. It is argued that the petitioner opposite party did not take any objection as to the pecuniary jurisdiction of the District Forum in its written statement. Therefore, his plea against the pecuniary jurisdiction was rightly ignored by the State Commission. In support of his contention, learned counsel has relied upon the judgment of the Supreme Court in Harshad Chiman Lal Modi Vs. DLF Universal Limited & Another (2005) 7 SCC 791.
9. In order to appreciate the above contention of the parties, it is necessary to have a look on the pleadings. Undisputedly, the consideration amount for the subject flat was Rs.29,98,500/-. The complainant apart from other reliefs had sought possession of the said flat. Therefore, the pecuniary jurisdiction of the subject matter of the consumer complaint was much more than Rs.20,00,000/- which is the outer limit of the pecuniary jurisdiction of the District Forum under section 11 (1) of the Act. Now, the question is whether the exercise of jurisdiction by the District Forum is fatal to the claim of the respondent complainant?
10. Hon'ble Supreme Court in the matter of Harshad Chiman Lal Modi (supra) while dealing with the issue of jurisdiction has held as under:
"We are unable to uphold the contention. The jurisdiction of a court may be classified into several categories. The important categories are (i) territorial or local jurisdiction; (ii) pecuniary jurisdiction; (iii) jurisdiction over the subject-matter. So far as territorial and pecuniary jurisdictions are concerned, objection to such jurisdiction has to be taken at the earliest possible opportunity and in any case at or before settlement of issues. The law is well settled on the point that if such objection is not taken at the earliest, it cannot be allowed to be taken at a subsequent stage. Jurisdiction as to subject-matter, however, is totally distinct and stands on a different footing. Where a court has no jurisdiction over the subject-matter of the suit by reason of any limitation imposed by statute, charter or commission, it cannot take up the cause or matter. An order passed by a court having no jurisdiction is a nullity."
11. From the above, it is clear that the objection pertaining to the pecuniary / territorial jurisdiction must be taken at the earliest possible opportunity and it cannot be allowed to be taken at a subsequent stage. In order to show that the respondent opposite party challenged the pecuniary jurisdiction of the District Forum, learned counsel for the petitioner has drawn our attention to the preliminary objection No.7 of the written statement which reads as under:
"That the issues raised by the complainant require a lot of evidence and these issues cannot be decided by this Hon'ble Forum. The present complaint is that of civil nature and could be decided only by civil court of competent jurisdiction. With due respect to this Hon'ble Forum, this Hon'ble Forum does not have the jurisdiction to decide the present complaint, between the parties."
12. On careful reading of the above, it is clear that by this objection, opposite party had raised an issue that the complaint raises issues of civil nature which could be decided only by the civil court. By no stretch of imagination, it can be said that vide preliminary objection no.7, the opposite party has challenged the pecuniary jurisdiction of the District Forum. Even on perusal of the order of the District Forum, it is clear that during the course of arguments before the District Forum, the issue pertaining to pecuniary jurisdiction was not raised. The opposite party has raised the issue of pecuniary jurisdiction only at the appellate stage and it cannot be allowed in view of the law laid down by the Supreme Court in the matter of Harshad Chiman Lal Modi (supra). Otherwise also, section 21 (2) of Code of Civil Procedure, which deals with objection to jurisdiction, provides that no objection as to competence of a court with reference to the pecuniary limits of its jurisdiction shall be allowed by the appellate or revisional court unless there has been a consequent failure of justice. In view of the above, in order to succeed on this objection, the opposite party is required to prove that orders of the foras below have resulted in failure of justice. On going through the record, we find that impugned orders have been passed against the petitioner opposite party because of deficiency in service on its part in failure to deliver possession of the subject flat to the respondent complainant within the stipulated time or for that matter, even several years after the stipulated time. Therefore, it cannot be said that the orders of the foras below have resulted in failure of justice. Therefore, also, the plea of the petitioner pertaining to lack of pecuniary jurisdiction on the part of the consumer courts is not maintainable.
13. Secondly, it is contended that the impugned order is liable to set aside because it has been passed in utter disregard of plea of Force Majeure clause contained in the agreement between the parties. We do not find merit in the above contention. The revisional jurisdiction of this Commission flows from section 21 of the Act and it is restricted to the extent of jurisdictional error or some material irregularity committed by the fora below. On perusal of the orders of the foras below, we find that both the District Forum as well as the State Commission has dealt with the plea regarding the Force Majeure by well reasoned orders and both of them have returned concurrent findings against the petitioner opposite party and held the petitioner deficiency in service. We do not find any reason to interfere with the concurrent finding of fact returned by the foras below.
14. Two main pleas to substantiate the Force Majeure are that the rock was found under the earth which took several months to remove. This plea of the opposite party is not sustainable for the reason that in the reply to the consumer complaint, opposite party has not disclosed as to by which date the rock was removed. As per the agreement between the parties, the possession of the flat was to be given within 30 months from the date of agreement i.e. 10.03.2005. Almost 10 years have gone by but the possession of flat with car parking has not been delivered. Therefore, it cannot be said that rock beneath the earth which admittedly was removed within few months prevented the opposite party to complete the projected. It is further contended that the construction dispute arose between the opposite party and the contractor which led to the delay in completion of project. This plea, in our view, cannot be taken as Force Majeure circumstance which prevented the opposite party to complete the project. Therefore, we are of the view that foras below have rightly dismissed the plea of the Force Majeure taken by the opposite party.
15. Lastly, it is contended on the part of the petitioner opposite party that the State Commission has committed an error in failing to appreciate that that vide letter dated 09.08.2011, the complainant was called upon to pay a sum of Rs.16,68,400/- on account of escalation of cost of building material and labour, increase in the proportionate area, internal development charges, charges for documentation / completion certificate, interest and service tax etc. It is contended that complainant failed to pay the aforesaid demand and as such her allotment stood cancelled. Therefore, after the cancellation of allotment, the relationship of consumer and service provider came to an end and as such, the complaint itself became not maintainable. There is no merit in the above contention. The complaint was filed in the year 2009. Letter dated 09.08.2011 raising further demand is nothing but a ploy to create a defence.
16. In view of the discussion above, we do not find any jurisdictional error or material irregularity in the impugned order which may call for interference in exercise of revisional jurisdiction. Revision petition is, therefore, dismissed.
......................J AJIT BHARIHOKE PRESIDING MEMBER