State Consumer Disputes Redressal Commission
Mwo Kanwaljit Singh(672877-G) vs Airforce Naval Housing Board And ... on 3 November, 2015
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
Consumer Complaint No. 50 of 2013
Date of institution:29.4.2013
Date of Decision: 3.11.2015
MWO Kanwaljit Singh (672877-G) s/o Shri Bakhshish Singh r/o IT Cell, 12
Wing, AF Stn., Chandigarh.
.....Complainant
Versus
1. Airforce Naval Housing Board, Air Force Station, Race Course, New
Delhi through its Chairman/ Director/ Managing Director/ Secretary.
2. Airforce Naval Housing Board, Sector 125, Sunny Enclave, Kharar,
Mohali through its Director General.
.....Opposite Parties
Consumer Complaint under the Consumer
Protection Act, 1986.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Jasbir Singh Gill, Member
Mrs. Surinder Pal Kaur, Member
Present:-
For the complainant: None.
For Ops : Sh. Rajesh Sharma, Advocate with
Sh. B.S. Nirala, Asstt. Director
Consumer Complaint No. 50 of 2013 2
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
Complainant has filed the present complaint under Section 17 of the Consumer Protection Act, 1986 (for short 'the Act') against the opposite parties(hereinafter referred as Ops) on the averments that complainant submitted an application to Ops for registration of category 'B' flat measuring 900 sq. ft. costing Rs. 14.04 lacs in the year 2007. OP intimated vide letter dated 13.1.2009 that the sample flat is likely to be completed in April, 2009 but the project was late by 3½ years. in the draw, complainant was allotted flat No. R-703 and parking No. PP-34 but OPs did not hand over the possession of the same. Lateron OPs vide letter dated 12.12.2011 issued fresh schedule of possession, which will commenced on 9.1.2012. Vide letter dated 19.1.2012, Ops instead of handing over the possession, demanding Rs. 5,08,963/-. Vide letter dated 6.3.2013, Ops claimed that 5 blocks are complete and they are handing over the possession from 11.3.2013 but till 25.4.2013, they have not handing over the possession of the flat to anybody. Ops further asked to pay Rs. 2,50,000/- from the allottees for B category flats upto 29.4.2013. Complainant has already paid Rs. 21,40,913/- and is waiting for the possession. Instead of offer of possession, additional demand of Rs. 2,50,000/- has been raised by Ops without giving the details. There is no transparency in how they demanded the additional amount of Rs. 2,50,000/-. In case the Society has delayed the project for four years then the Society should be responsible for that, in case there is any escalation in the cost of Consumer Complaint No. 50 of 2013 3 construction the burden should not be put upon the Members. It was alleged that there was deficiency in services on the part of Ops and complaint was filed against Ops with the following directions:-
i) Pay the above mentioned loss to complainant for unfair trade practice/negligence in service being carried on by the Op's,
ii) to quash the illegal demand raised by Ops amounting to huge sum of Rs. 2,50,000/-,
iii) directions to Ops to show the accounts to the applicant/his authorized representatives.
iv) a compensation of Rs. 2000/- per day be awarded to the allottees/ complainant as damages for further delay in handing over the flat to complainant/allottees.
v) Ops be directed to compensate complainant for inordinate delay in handing over the possession of the flats.
vi) Interest @ 18% per annum be awarded on the total sum deposited by complainant from the respective date of deposit made i.e. from Jan., 2010.
vii) Ops be restrained from charging any escalation charges caused due to the delay in the construction of the building/flats which is solely due to the negligence/fault of Ops themselves, a further direction to Ops to desist from such an unfair trade practice in future.
2. The complaint was contested by Ops, who filed written reply taking preliminary objections that complainant is not a consumer; Ops did not provide any services in lieu of any sale Consumer Complaint No. 50 of 2013 4 consideration. In fact Ops is Society registered under the Societies Act, 1860 i.e. a welfare organization with common object of providing houses to the needy serving and retired Air Force and Naval Personnel, widows of these two services on no profit no loss basis. Ops are not to construct or sell the houses for any monetary benefit, rather, in consonance of the object, appoint a Contractor and Architect for construction of dwelling units under the self financing housing scheme all over the country. Ops do not have their own funds. The amount is collected from the allottees to complete the project. Complainant has sought the refund on the ground of delay in possession and revision of cost whereas the terms and conditions of the allotment letter clearly state that the indicated area and cost of the DU are tentative and are liable to be changed and to this effect complainant had sworn the affidavit dated 27.8.2007 undertaking to abide by the rules and regulations of Ops and once the parties agreed to abide by any contract or agreement/rules lawfully framed then the complaint filed for any relief out of the agreed terms and conditions is not tenable and that the complaint is not maintainable because as the possession of dwelling unit No. R-703 was offered vide letter dated 6.3.2013 but the complainant has not cleared his dues. On merits, it was again reiterated that Ops is a Society and is a welfare organization with the object to provide houses to the needy serving, retired Air Force/Naval Officers and the project was launched under self financing housing scheme and tentative cost was fixed as Rs. 14.04 lacs exclusive of Long Term Maintenance Fund, Parking Area, Equalization charges, Cost of additional area and escalation of Consumer Complaint No. 50 of 2013 5 price and notice was issued to complainant on account of escalation of the steel and cement price. The delay to complete the project was that Hon'ble High Court vide order dated 17.5.2010 had banned the mining work in Punjab State. Upto December, 2012, Ops have offered the physical possession of Block A, B, T, U, V, W, I, C, H, R & S consisting of approximately 500 dwelling units out of which, 115 DUs have been taken over by the allottees after clearing their dues and further DU in Block No. I, H, C, R & S have also been offered for possession vide letter dated 6.3.2013. The allottees were intimated vide letter dated 19.1.2012 of the proposed date of possession and actual cost to be paid by them. However, the allottees, who were not satisfied with the revised cost and area of DU were given an option of withdrawl. Complainant was offered possession of its allotted DU No. R-703 vide letter dated 6.3.2013, however, complainant did not turn up for the reasons best known to him. The cost also increased due to enforcement of levy of service tax, Labour Cess, VAT as well as escalation of prices in steel and cement. The complaint is not maintainable. It is without merit and it be dismissed.
3. The parties tendered their respective evidence in support of their pleadings.
4. In support of his allegations, complainant had tendered into evidence affidavit of Sh. Kanwaljit Singh Ex. C-A, allotment letter Ex. C-1, flat allotment letter Ex. C-2, letter Ex. C-3, letters Exs. C- 4&5, letter regarding schedule of possession Ex. C-6, letter regarding progress of work Ex. C-7, payment made Ex. C-8. On the other hand, OPs had tendered into evidence affidavit of B.S. Nirola, Asstt. Consumer Complaint No. 50 of 2013 6 Director Admn. (Legal) Ex. R-A, Board resolution Ex. RW-1/1, certificate of Registration Ex. RW-1/2, memorandum of Association Ex. RW-1/3, allotment letter Ex. RW-1/4, affidavit Ex. RW-1/5, letters Exs. RW-16 to Ex. RW-1/8, order passed by PSERC Ex. RW-1/9, details of instalments Exs. RW-1/10, letter Ex. RW-1/11, conveyance deed Ex. RW-1/12.
5. At the outset, the counsel for Ops has brought to the notice of this Commission, the terms and conditions specifically Clause Nos. 27 & 28, the allotment letter Ex. C-2 and Clause 27 & 28, reads as under:-
"27. Court Cases : The Registrant/allottee may take recourse to court only after he has exhausted all avenues of redress. The Board being a registered society shall sue and be sued in the name of Director General. No other officer of the Board or any member of the Board of Management shall be a party to any legal proceedings. All suits and legal proceedings of any kind against the Board shall be instituted in the appropriate court/s in Delhi/New Delhi, notwithstanding the location of the property, which may be the subject matter of dispute. No suits or legal proceedings of any kind shall be instituted against the Board unless a notice in writing has been delivered to Board stipulating the nature of claim, cause of action, relief sought, name, registration number and address of the person, and a period of two months has expired thereafter. The expenditure incurred by the Board will be on the allottee/ Consumer Complaint No. 50 of 2013 7 project account depending upon whether complainant is an individual / society etc. respectively.
28. Jurisdiction: In the event of any dispute arising with regard to the terms and conditions of allotment or possession of dwelling unit, the same shall be subject to the jurisdiction of District Court at Delhi or the High Court of Delhi at New Delhi."
6. According to this agreement, in case there was any dispute between the Board and the Board of Management, the legal proceedings of any kind shall be instituted in appropriate Courts at Delhi/New Delhi and under the Clause 28, again it was reiterated that in the event of any dispute with regard to the terms and conditions of allotment/possession of the Dwelling Unit, the same shall be subject to the jurisdiction of District Court at Delhi or the High Court of Delhi at New Delhi. Whereas it was averred by complainant that the flat is situated at Mohali under the territorial jurisdiction of this Commission, therefore, this Commission has the jurisdiction and the jurisdiction of this Commission cannot be ousted by way of any agreement.
7. We have considered the submissions made by the counsel for Ops.
8. No doubt that the jurisdiction cannot be ousted by way of unilateral agreement. If otherwise the jurisdiction is made out on the basis of provisions under the agreement but in case both the parties have agreed with regard to jurisdiction at particular place/Court then only that Court will have the jurisdiction. The terms and conditions with regard to the jurisdiction issued to complainant in the allotment letter referred above and in pursuance to that allotment letter, an Consumer Complaint No. 50 of 2013 8 affidavit was filed by complainant admitting the terms and conditions of the allotment letter. The said affidavit is Ex. RW-1/5 and in para No. 5 of the affidavit that he will abide by all rules, orders and instructions issued by the Board from time to time and execute such deeds or documents as required by the Board with regard to allotment or non-allotment of the flat. Therefore, once complainant has admitted the terms and conditions of the allotment letter in which it was agreed that in case of any dispute only Delhi Courts will have the jurisdiction. Therefore, it is not unilateral condition but agreed condition. In case one or more Courts have the territorial jurisdiction then the parties could confer that territorial jurisdiction on one of those Court and can exclude the territorial jurisdiction of other Courts. In this way, once the territorial jurisdiction has been conferred upon Delhi Court then the Courts in Punjab will have no territorial jurisdiction and accordingly, State Commission, Punjab will have no territorial jurisdiction to entertain this complaint. Similar matter on the same terms and conditions had come up in consumer complaint No. 66 of 2014 decided by the Principal Bench of this Commission vide order dated 24.4.2014 and the complaint was dismissed on account of territorial jurisdiction. In the present case, the same terms and conditions are there, therefore, once the judgment has been passed by this Commission, then the same is to be followed by other benches of this Commission. In Consumer Complaint No. 66 of 2014 dated 24.4.2014 and in the facts referred above in the present complaint, we are of the opinion that this Commission has no territorial jurisdiction to entertain this complaint. In these Consumer Complaint No. 50 of 2013 9 circumstance, no findings on merits can be given, accordingly, the complaint is dismissed without any prejudice to the rights of complainant to file a fresh complaint on the same subject matter before an appropriate Forum. No order as to costs.
9. The arguments in this consumer complaint were heard on 12.10.2015 and the order was reserved. Now the order be communicated to the parties as per rules.
10. The consumer complaint could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran) Presiding Judicial Member (Jasbir Singh Gill) Member November 3, 2015. (Surinder Pal Kaur) as Member