State Consumer Disputes Redressal Commission
Dr. Raj Kumar Gupta & Anr. vs Sneh Deep Aggarwal, Owner Of M/S Pavni ... on 24 September, 2013
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.865 of 2013.
Date of Institution: 13.08.2013.
Date of Decision: 24.09.2013.
1. Dr. Raj Kumar Gupta S/o Sh. Om Parkash Gupta,
2. Dr. Soninder Kaur wife of Dr. Raj Kumar Gupta, Flat No.404-A,
Garden Heights, Sirhind-Rajpura Bypass, Patiala.
.....Appellants.
Versus
1. Sneh Deep Aggarwal, owner of M/s Pavni Buildwell Pvt. Ltd.,
Regd. Office, E-52, New Manglapuri, Mandi Road, Mehrauli, New
Delhi-110030.
2. Arjun Aggarwal, Director M/s Pavni Buildwell Pvt. Ltd., Regd.
Office, E-52, New Manglapuri, Mandi Road, Mehrauli, New
Delhi-110030.
3. Dr. Sachin Gupta, M.D. M/s Pavni Buildwell Pvt. Ltd., Regd.
Office, E-52, New Manglapuri, Mandi Road, Mehrauli, New
Delhi-110030.
4. Estate Officer, Garden Heights, Sirhind Bypass, Patiala.
...Respondents.
First Appeal against the order dated
25.07.2013 of the District Consumer
Disputes Redressal Forum, Patiala.
Before:-
Shri Inderjit Kaushik, Presiding Judicial Member.
Shri Vinod Kumar Gupta, Member.
Present:- Sh. Pavinder Singh Bedi, Advocate along with Dr. Raj Kumar Gupta, appellant in person.
INDERJIT KAUSHIK, PRESIDING JUDICIAL MEMBER:-
Dr. Raj Kumar Gupta and another, appellants/complainants (In short "the appellants") have filed this appeal against the order dated First Appeal No. 865 of 2013 2 25.07.2013 passed by the learned District Consumer Disputes Redressal Forum, Patiala (in short "the District Forum").
2. Facts in brief are that the appellants filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act") on 15.07.2013 bearing No.CC/13/247 against the respondents/opposite parties (hereinafter called as "the respondents"), pleading that on the advertisement of the respondents, they purchased one residential flat on 10.09.2009, consisting of three bedrooms, three toilets with super area of 1740 sq.ft. and paid the cost of the flat and ultimately, Flat No.404, 4th Floor, Block-A was allotted to the appellants in Garden Heights, Sirhind-Rajpura Bypass, Patiala vide allotment letter dated 10.09.2009. An agreement was also executed between the appellants and the respondents on 10.09.2009, specifying the allotment of the above flat, having super area of 1740 sq.ft.
3. The possession of the said flat was delivered on 22.04.2011 and as per the agreement, the area was to be 1740 sq.ft. Earlier, the appellants filed a complaint for using sub-standard material in the construction of the flat and other deficiencies in service on the part of the respondents and that was decided in favour of the appellants on 09.04.2013.
4. The appellants got suspicious about the super area of the flat No.404-A, when Surveyor/Architect of the respondents submitted his report regarding the measurement of the flat and the appellants also got the same measured from Sh. V.K. Goyal, Architect and it was found that the actual area of the flat given to the appellants, is only 1488 sq.ft. instead of 1740 sq.ft. and there was a huge difference of 252 sq.ft. The appellants were shocked that they have been deprived of their hard First Appeal No. 865 of 2013 3 earned money due to the unfair trade practice and deficiency in service on the part of the respondents.
5. The respondents got deposited a sum of Rs.75,000/- towards covered car parking fee from the appellants along with the booking amount in September, 2009, but the respondents have not allotted any covered or uncovered area for car parking. The appellants have paid Rs.75,000/- and have been losing its interest also and they were left with no alternative, except to file the present complaint. Before filing the complaint, a legal notice was also issued dated 17.06.2013, but the respondents did not pay any heed.
6. Prayer was made that the respondents may be directed to provide the complete area measuring 1740 sq.ft., or to return the amount proportionally to 252 sq.ft. @ Rs.1650/- per sq.ft. which comes to Rs.4,15,800/- along with interest @ 24% from 10.09.2009 till realization, to refund Rs.75,000/- paid for car parking along with interest and to pay Rs.5.00 lacs as compensation for harassment and Rs.10.00 lacs on account of deficiency in service and unfair trade practice and Rs.5,500/- as litigation expenses.
7. The District Forum, at the time of admission of the complaint, dismissed the complaint in limine, observing that earlier also the complaint No.CC/12/172 was filed on account of use of sub- standard material which was decided on 09.04.2013. Previous complaint remained pending for one year before the District Forum and it is not believable that the appellants have not come to know about the super area during the period of two years after the date of delivery of possession w.e.f. 22.04.2011, or during the pendency of the complaint. In the calculation sheet prepared by Sh. V.K. Goyal, Architect, no date First Appeal No. 865 of 2013 4 of measurement is mentioned and the application for condonation of delay has no substance and there is no ground to accept the same.
Regarding Rs.75,000/- paid for providing covered parking, the appellants have not made any request to refund the said amount within a period of two years from the date of delivery of possession and the same is time barred. The appellants were required to seek the relief in this regard in the previous complaint and the complaint is hopelessly time barred.
8. Aggrieved by the impugned order dated 25.07.2013, the appellant has come up in appeal.
9. We have gone through the pleadings of the appellant as given in the complaint as well as the appeal, perused the record of the learned District Forum pertaining to CC/2012/172 dated 20.04.2012 and have heard the arguments advanced by the learned counsel for the appellant along with appellant no.1, who is present in person.
10. Admittedly, the previous complaint was filed on 20.04.2012 and was decided on 09.04.2013 in favour of the appellants. The said complaint was regarding the sub-standard material used in the construction and other deficiencies, but it was neither regarding the super area, as agreed by the respondents, nor for providing the covered area for car parking. The District Forum has dismissed the complaint filed by the appellants, on the ground that the relief of refund of Rs.75,000/- paid for providing covered car parking area, was not sought in the previous complaint and the calculation sheet given by Sh. V.K. Goyal, Architect is undated and there is no ground to condone the delay.
11. The allotment agreement was executed between the parties and under the head "Flat Details-1", the super area is mentioned First Appeal No. 865 of 2013 5 as "1740 sq.ft.". There is no doubt that the appellant has made the entire payment and the possession has been delivered. The possession, admittedly, was delivered on 22.04.2011. The previous complaint was filed on 20.04.2012 and it was decided on 09.04.2013 i.e. within one year. Later on, the appellants have come to know that the super area is less by 252 sq.ft. and the covered car parking area was also not provided and they filed this complaint on 15.07.2013. The appellants also filed an application for condonation of delay on the grounds that his mother of appellant no.1 was ill and she was admitted in Fortis Hospital and her knees were replaced/transplanted. The appellants also filed the documents regarding the treatment taken and admission as well as discharge record, but the District Forum has not discussed even a single word about the reasons given by the appellants for condonation of delay and dismissed the application on another ground, which was not, at all, mentioned in the application for condonation of delay. It is pertinent to mention here that the provisions of CPC are not strictly applicable to the cases before the Consumer Forums and particularly, the provisions of Order 2 Rule 2 CPC which the District Forum applied, are not, at all, applicable.
12. Sequel of above discussion, the appeal filed by the appellants is accepted and the impugned order under appeal dated 25.07.2013 passed by the District Forum is set aside. The District Forum is directed to decide the application for condonation of delay, by passing a detailed and speaking order, discussing the grounds mentioned in the application as well as the evidence produced in support of the application.
13. The copy of the order be sent to the District Forum, Patiala, forthwith and after the receipt of copy of the order, the District Forum First Appeal No. 865 of 2013 6 shall procure the presence of the appellants and shall comply with the order.
(Inderjit Kaushik) Presiding Judicial Member (Vinod Kumar Gupta) Member September 24, 2013.
(Gurmeet S)