State Consumer Disputes Redressal Commission
M/S Industrial Cables (India) Limited vs Anand Purak Singh on 22 May, 2012
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.148 of 2012.
Date of Institution: 08.02.2012.
Date of Decision: 22.05.2012.
M/s Industrial Cables (India) Limited, SCO NO.175-176, Madhya Marg,
Sector 8-C, Chandigarh.
.. Appellant.
Versus
Anand Purak Singh S/o Sh. Dalip Singh, R/o Flat No. D-202, Ivory Towers,
Sector-70, SAS Nagar, Mohali.
....Respondent.
First Appeal against the order dated
09.01.2012 of the District Consumer
Disputes Redressal Forum, SAS Nagar,
Mohali.
Before:-
Shri Inderjit Kaushik, Presiding Member.
Shri Piare Lal Garg, Member.
Present:- Sh. R.S. Manhas, Advocate, counsel for the appellant.
Sh. Anand Purak Singh, respondent in person.
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INDERJIT KAUSHIK, PRESIDING MEMBER:-
M/s Industrial Cables (India) Limited, appellant (In short "the appellant") has filed this appeal against the order dated 09.01.2012 passed by the learned District Consumer Disputes Redressal Forum, SAS Nagar (Mohali) (in short "the District Forum").
2. Facts in brief are that Sh. Anand Purak Singh respondent/ complainant (hereinafter called as "the respondent") filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the appellant, on the grounds that he purchased flat no.H-204 at Ivory Towers, Sector-70, Mohali from the appellant vide allotment letter no.ICL/RED/MKT/3886 dated 22.04.2000 for Rs.11,50,000/-. The appellant served a notice for payment and possession vide letter dated 23.12.2000 and First Appeal No.148 of 2012 2 physical possession of the said flat was given on 21.01.2001 after full and final payment of Rs.11,50,000/- as per possession letter dated 21.01.2001 issued by the appellant.
3. As per the terms and conditions of the allotment letter as well as agreement of sale dated 22.04.2000, the appellant was required to get the sale deed executed in favour of the respondent within 30 days of the date of offer of possession i.e. within 30 days after 23.12.2000 and the cost was to be borne by the respondent. After getting the possession on 21.01.2001, the respondent requested the appellant verbally as well as in writing to get the conveyance deed of the said flat executed in favour of the respondent, but the appellant could not execute the conveyance deed despite number of requests made by the respondent, on the pretext that there was some dispute between the appellant and PUDA but for that, the respondent was not responsible. The appellant conveyed their inability to execute the conveyance deed through certificate dated 24.02.2001, letter dated 07.09.2001 along with certificates dated 06.09.2001 and 14.09.2002. The registration fee of the flat in 2001 was @ 6% of Rs.11.50 lacs which comes to Rs.70,000/- approximately.
4. The appellant notified the purchasers for execution of the conveyance deed only on 26.03.2009 through a registered notice displayed at the site and there was a delay of eight years and during this period, the rate of stamp duty was revised from 6% to 8% and cost of the flat as per collectoral rates was hired from Rs.11.50 lacs to Rs.22.56 lacs. The respondent got the sale deed executed on 11.03.2010 after paying Rs.1,80,500/- as stamp duty at the prevalent rate and he has to pay Rs.1,10,500/- extra due to delay in executing the sale deed by the appellant and suffered loss of Rs.1,10,500/-. The respondent requested the appellant to refund the amount of Rs.1,50,000/- along with compensation of Rs.20,000/- for harassment and mental agony through registered notice dated 28.10.2011, but no reply was given. It was prayed that the appellant be First Appeal No.148 of 2012 3 directed to refund a sum of Rs.1,10,500/- being the excess costs of the stamp duty and pay compensation to the tune of Rs.20,000/-.
5. In the written reply filed on behalf of the appellant, the preliminary objections were taken that there is no unfair trade practice on the part of the appellant. The respondent is seeking the recovery of money being part of the value of stamp duty paid at the time of registration of the sale deed and the civil court has the jurisdiction and the claim is not covered under the Act. As per the terms and conditions of the agreement of sale, the appellant was to deliver the possession within three years from the date of execution of the agreement of sale, but if the delay was caused due to the reasons beyond the control of the appellant, then the appellant was not liable and the complaint is not maintainable.
6. There was litigation between the appellant and PUDA, as the appellant filed an application u/s 45 (7) of the PUDA Act, 1995 before the Additional Chief Administrator, GMADA against the demand of Rs.1,78,97,570/- raised by Estate Officer, GMADA. The appellate authority vide letter dated 31.01.2007 remanded the case to the Estate Officer to recalculate the final amount and inform the appellant within one month. The appellant also filed Civil Writ Petition No.11729 of 2008 for seeking direction to GMADA to decide the pending issues within time bound period. Hon'ble High Court vide order dated 11.07.2008 issued direction to GMADA to decide the representation of the appellant within six weeks by way of passing a speaking order. The Estate Officer, GMADA raised the demand of Rs.3.97 Crores and the appellate authority vide order dated 08.12.2008, allowed the appeal and directed the Estate Officer to give final demand within three weeks from the date of the order and Estate Officer gave the final demand of Rs.1,38,17,784/- and the appellant immediately deposited the amount with the Estate Officer, GMADA and got the conveyance deed executed in its favour on 24.03.2009. There was no fault of the appellant, as the delay was not within the control of the appellant.
First Appeal No.148 of 2012 4
7. As per clause-9 in the allotment letter, the land vests in PUDA until or unless the entire consideration money with other dues are paid. The appellant was not holding a clear title in respect of the apartment and land and could not execute the sale deed in favour of the allottee upto 24.03.2009. The respondent was well aware since January, 2001 that the sale deed of the flat will be executed at later stage and gave undertaking by way of affidavit to deposit the amount of stamp duty and registration charges as and when required by the appellant and now he cannot turn around and say that he is not liable to pay the additional amount.
8. On merits, the purchase of the said flat by the respondent, notice for payment and possession, giving of physical possession against full and final payment of Rs.11.50 lacs was admitted. The letters were received way back in the year 2001. Service of notice dated 26.03.2009 was also admitted. The appellant got the title on 24.03.2009 and on 26.03.2009, asked the flat owners to come forward for execution of the sale deed and the same was admitted by the respondent, but he came forward for registration of the sale deed on 11.03.2010 after a delay of one year for the reasons best known to him. All other allegations were denied and it was prayed that the complaint may be dismissed.
9. Parties led evidence in support of their respective contentions by way of affidavits and documents.
10. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that the entire sale consideration of Rs.11.50 lacs was received by the appellant on 21.01.2001 and there was no term and condition in the allotment letter or notice dated 23.12.2000 that it will the responsibility of respondent to pay stamp duty and registration charges as on the date of actual execution and registration of the conveyance deed, even if the registration of the sale deed was delayed due to the reasons attributable solely to the appellant. The respondent has to pay excess stamp duty and First Appeal No.148 of 2012 5 registration charges of Rs.1,10,500/- for not fault of his, but on account of the fault of the appellant and the appellant is liable to refund the amount of Rs.1,10,500/- to the respondent and accordingly allowed the complaint, directing the appellant to pay Rs.1,10,500/- with interest @ 9% p.a. w.e.f 11.03.2010 till payment and Rs.5000/- as litigation expenses.
11. Aggrieved by the impugned order dated 09.01.2012, the appellant has come up in appeal.
12. We have gone through the pleadings of the parties and have perused the record of the learned District Forum. We have also heard the arguments advanced by the learned counsel for the appellant as well as respondent, who was present in person.
13. Admittedly, the respondent purchased the flat in question from the appellant and paid the entire amount of Rs.11.50 lacs which was the sale consideration and the physical possession of the said flat was handed over to him on 21.01.2001 and thereafter, the sale deed was to be executed.
14. The sale deed could not be executed due to some dispute between the appellant and GMADA regarding the payment and the appellant filed appeals before the authorities of GMADA against the orders of Estate Officer, GMADA and also writ petition, copy of which is Ex.R-1, which was decided on 11.07.2008 and the Hon'ble High Court directed the authorities of GMADA to dispose of the representation of the appellant company dated 02.06.2008 within a period of six weeks, by passing a speaking order. The Additional Chief Administrator, GMADA vide order dated 08.12.2008 observed that inspite of the order passed by the appellate authority dated 13.07.2005, the conveyance deed was not executed in favour of the appellant and directed the 'Milakh Officer' to comply with the orders passed immediately.
15. Thereafter, the Estate Officer, GMADA got the conveyance deed executed in favour of the appellant on 24.03.2009 and the appellant on 26.03.2009 informed the allottees by way of notice displayed at the site to get First Appeal No.148 of 2012 6 the sale deed executed and thereafter, the respondent got the sale deed Ex.C10 executed on 11.03.2010 and the respondent has to pay the stamp duty as per the rate prevalent on 11.03.2010.
16. The next material question which is relevant for the decision of this appeal is whether the delay in execution of the sale deed was caused by the appellant intentionally or deliberately or it was due to the circumstances beyond the control of the appellant?
17. Perusal of order Ex.R-2 show that the appellant company was to make payment to GMADA and certain rebates were to be given to the appellant in case the flats/dwelling units are completed within a particular period but due to their dispute, the allotment of the site was cancelled by 'Milakh Officer' vide his order dated 15.06.2004 and in the appeal, the Additional Chief Administrator, PUDA (now GMADA) restored the allotment in favour of the appellant company vide order dated 13.07.2005. Again, there was dispute regarding the rebate and ultimately, vide order Ex.R-2 dated 08.12.2008, the Additional Chief Administrator, GMADA, Mohali observed that despite the order dated 13.07.2005 passed by the appellate authority, the concerned officials of the office of the 'Milakh Officer' have dealt the case with irresponsibility and caused unnecessary delay and the conveyance deed of the land allotted by GMADA could not be executed in the name of the appellant and for that reason, the appellant could not transfer the title in favour of the flat owners.
18. From the above, it is clear that the dispute was unnecessarily prolonged by the officials of the GMADA and they were held irresponsible by the appellate authority of GMADA itself and they were again directed to comply the orders passed on 13.07.2005 within the stipulated period. Not only this, the appellant also filed Civil Writ Petition No.11729 of 2008 Ex.R-1 and on 11.07.2008, the following order was passed by the Hon'ble High Court:-
"This petition stands disposed of at this stage with a direction to Addl. Chief Administrator/Estate Officer, GMADA, Mohali to dispose of the First Appeal No.148 of 2012 7 representation of the petitioner company dated 2.6.2008 (Annexure P-
9) within a period of six weeks by passing a speaking order after giving an opportunity of hearing to the petitioner company".
19. Thus, it is apparent on the face of it that the appellant has been ready and willing and was making all efforts to settle the dispute regarding payment with GMADA, but the officials of GMADA due to their irresponsible behaviour delayed the same and the appellant ultimately got a direction issued from the Hon'ble High Court vide Ex.R-1.
20. Hon'ble Supreme Court way back in case "Ravneet Singh Bagga Vs KLM Royal Dutch Airlines & Anr.", (2000) 1 Supreme Court Cases -66, interpreted the term 'deficiency', as provided under the Act and in Para-6 (relevant portion) observed as follows:-
"The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service.
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------------------------------ --------------------- In case of bona fide disputes no willful fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance in the service can be informed (sic.). If on facts it is found that the person or authority rendering service had taken all precautions and considered all relevant facts and circumstances in the course of the transaction and that their action or the final decision was in good faith, it cannot be said that there had been any deficiency in service".
21. From the above, it is clear that there was no fault, imperfection, shortcoming or inadequacy of the quality, nature and manner of performance so far as the appellant is concerned. The appellant has been hotly pursuing First Appeal No.148 of 2012 8 its case to get the conveyance deed executed in its favour and till the appellant could get the title, it could not pass title to the respondent.
22. The respondent executed affidavit Ex.R-4 and in Para-3, respondent through this affidavit gave the following undertaking:-
"That, as the Sale Deed is to be executed at later stage, the deponent undertakes to deposit the amount of Stamp Duty and Registration Charges as and when required by the company, within 30 days after the receipt of the Notice, along with all the dues payable by the deponent before the execution and registration of the Sale Deed".
23. The appellant as soon as got the conveyance deed executed in its favour, within two days gave notice to the allottees to get the sale deeds executed and the stamp duty and other charges were to be paid to the State Govt. as per the rates prescribed during the relevant period and the respondent has to pay the same. Although, the respondent has paid the excess amount of Rs.1,10,500/- but for that, the appellant cannot be blamed or be made responsible because the delay, imperfection or other relevant factors of deficiency in service were not attributable to the appellant, nor the appellant was negligent in performing its part of the agreement, but it was beyond the control of the appellant and, as such, there was no deficiency in service on the part of the appellant. The order of the District Forum is not sustainable in the eyes of law and is liable to be set aside.
24. In view of above discussion, the appeal filed by the appellant is accepted and the impugned order under appeal dated 09.01.2012 passed by the District Forum is set aside. Consequently, the complaint filed by the respondent/complainant is dismissed. No order as to costs.
25. The appellant had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to the appellant by way of a crossed cheque/demand draft after the expiry of 45 days. First Appeal No.148 of 2012 9
26. The arguments in this appeal were heard on 14.05.2012 and the order was reserved. Now the order be communicated to the parties.
(Inderjit Kaushik) Presiding Member (Piare Lal Garg) Member May 22, 2012.
(Gurmeet S)