State Consumer Disputes Redressal Commission
Gurbachan Kaur vs The Punjab State Federation Of ... on 19 December, 2018
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
Consumer Complaint No.879 of 2017
Date of Institution: 06.10.2017
Order reserved on: 13.12.2018
Date of Decision : 19.12.2018
Gurbachan Kaur W/o Late Sh. Joginder Singh & Maninder Kaur Wife
of Sh. Manbir Singh R/o Flat No.185, Housefed Society, Sector 79-
A, S.A.S. Nagar, Mohali.
.....Complainant
Versus
The Punjab State Federation of Cooperative Housing Building
Societies Ltd. (Housefed) Punjab, SCO No.150-151-152, Sector 34-
A, Chandigarh through its Managing Director.
.....Opposite Party
Complaint U/s 17(1)(a) of the Consumer
Protection Act, 1986 (as amended up to
date).
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Smt. Kiran Sibal, Member.
Present:-
For the complainant : Sh. H.P.S. Ghuman, Advocate For the opposite party : Sh. N.S. Vashisht, Advocate .................................................................................. J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The complainant has instituted this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act") against opposite party (in short the 'OP') on the premise that OP floated Co-operative Housing Scheme of built up flats for allotment of residential flats of different categories in Sector 79, SAS Nagar Consumer Complaint No.879 of 2017 2 (Mohali) in two different pockets measuring 5.50 acres and 5.49 acres respectively in the year 2004. The last date for submission of application was 23.02.2004. Manpuneet Singh applied for category-I flat costing Rs.17.15 lakhs for the purpose of residence. As per brochure Annexure C-1, the payment could be made in easy installments with salient features, as promised, as underground water reservoir, landscaped lush green lawns, boosted water supply, walled complex etc. OP issued an allocation letter of the concerned flat to Manpuneet Singh and after allocation of the flat, the above said Manpuneet Singh sold the flat to Ravinder Goyal and said Ravinder Goyal further sold this flat to complainants and OP issued re-allotment letter to them, vide Annexure C-2 and the flat in question has been transferred subject to terms and conditions of the brochure/scheme in the name of complainants. There were two options of making the payments of cost of the flat. As per option no.2, the allottee was to pay initial deposit and rebate of 5% was to be given to the allottee, who shall pay the entire tentative cost of the flat by 30.06.2014 and the difference of final cost, if any, to be worked out after the completion of the flats and the tentative cost at the time of handing over of possession of the flat. The OP was required to start the construction work on or before 30.06.2004, but OP kept silent about this aspect and kept on collecting the installments from the other allottees and the construction had not started during this time by OP. The OP issued letter on 27.06.2006 to original allottee to the effect that court proceedings remained Consumer Complaint No.879 of 2017 3 pending in Hon'ble Court and OP remained unable to start the construction work and court proceedings might take unspecified time resulting in delay of execution of project and such delay will cause a substantial increase in the cost of the flats due to considerable increase in the prices of building materials etc. The option was sought from original allottee as to whether he wanted to withdraw the earnest money deposited towards the flat with interest @10% or to retain the flat at the enhanced cost from OP, which would be intimated after the construction of flats. The original allottee gave his consent for retaining the flat at the enhanced cost as fixed by OP. Vide demand notice dated 14.07.2014, the OP demanded Rs.44,17,000/- as final cost as against the allotment price of Rs.17,15,000/-, vide Annexure C-5. It is further prayed that as per brochure, no specific/exact date was given for handing over the possession of the flats to the allottees, which is an unfair trade practice. In the alleged court proceedings, the construction of flats had not been stopped and it is further pertinent to mention here that qua complex no.1, where the flat was allotted to original allottee, there were no court proceedings. As per letter dated 21.10.2009 Annexure C-9, there was no stay in court proceedings qua construction in category I & II pocket, but OP had made a wrong and misleading statement, while obtaining said undertaking to the effect that the allottee shall be bound to make payment of enhanced amount due to proceedings in the Hon'ble High Court leading to delay in completion of project. However, the possession was delayed Consumer Complaint No.879 of 2017 4 intentionally by OP. The allottees brought to the notice of OP to pay the interest for non-construction period on the amounts collected by them and also to pay compensation for harassment, but to no effect. The conveyance deed was to be executed within three months of the payment of the entire consideration of money. OP delayed the execution of sale deed, though it was required to be done within three years of the allotment at the most, as per allotment letter and the conveyance deed was executed on 01.06.2015 and OP charged an excess amount of Rs.4,00,000/- per unit. The OP bowed before the genuine demands of the allottees and admitted their negligent act in not getting the conveyance deed executed in given time and agreed to refund the excess amount collected from them qua conveyance deed. Accordingly, an amount of Rs.3,37,000/- was refunded, vide cheque dated 20.10.2015 without interest thereupon. As per letter dated 20.10.2009 annexure C-9, there was no stay for construction in complex no.1 by the Hon'ble High Court and OP is solely responsible for delay in making construction and is responsible for the enhanced prices due to its own mistake. The complainant has alleged deficiency in service and unfair trade practice on the part of OP and prayed for compensation permissible under law and Rs.1,00,000/- as litigation expenses.
2. Upon notice, OP appeared and filed written reply by raising preliminary objections that housefed was allotted two pieces of land measuring 5.50 acres and 5.49 acres by PUDA, vide memo no.5076 dated 11.03.2002 in Sector 79 SAS Nagar Mohali. It is Consumer Complaint No.879 of 2017 5 admitted that OP framed a scheme and offered super deluxe flat of 5 different categories in Sector 79 Mohali. The scheme was partially self financed and the balance amount was to be paid in easy installments. It is further averred that complaint is liable to be dismissed on the grounds of resjudicata, concealing the material facts and for abusing the process of law, because the earlier purchaser of flat Manpuneet Singh had filed a complaint no.135 of 2014 titled as Manpuneet Singh Vs. Housefed and another before the State Consumer Commission, U.T. Chandigarh, which was dismissed being devoid of any merit on 18.11.2014 by U.T. State Consumer Commission, vide Annexure OP-1. Said Manpuneet Singh filed appeal no.26 of 2015 before the Hon'ble National Commission and during pendency of that appeal, Manpuneet Singh sold his flat to Ravinder Goyal and withdrew his appeal, vide Annexure OP-2. The complainants are not the consumers of OP, as S. Patwinder Singh applied for category I flat on 22.02.2004 and he remained successful and letter for allocation of category I was issued to him vide Annexure OP-3. Thereafter, Dr. Manpuneet Singh purchased the allocation of category I flat from Patwinder Singh and re-allocation letter no.Hfed/TW/12787 dated 08.03.2006 was issued in his favour, vide Annexure OP-4. Dr. Manpuneet Singh deposited the amount and sold the flat to Ravinder Goel vide Annexure OP-5 and from Ravinder Goel, the present complainants purchased the said flat on 29.01.2016 and they are not competent to file the present complaint OP. Due to stay order passed by the Hon'ble High Court, Consumer Complaint No.879 of 2017 6 PUDA could not deliver the possession of the allotted land to OP. Thereafter, the Board of Directors of Housefed passed a resolution on 19.05.2006 giving an option to the allottees either to seek the refund of the earnest money deposited by them alongwith interest @10% per annum or to send their consent to retain the flat at the enhanced cost, which will be duly intimated during/after the construction of the flats. The original allottee exercised the specific option to retain the flat only. The cost of the flat was determined at Rs.41,86,000/- and complainant had already paid Rs.17,15,000/- before taking its possession, which was accepted by original allottee. The initial deposits of allottees have been used to pay the land costs and other heads to various departments such as erstwhile PUDA (now GMADA), Water and Sanitation Departments, Electricity Department Etc. by OP. Vide resolution dated 19.05.2006, the Board of Directors of the Housefed decided to inform the allottees about the status and accordingly the allottees were informed through registered post as well as public notices that PUDA had directed the Housefed not to undertake any construction work at site due to the litigation pending in the Hon'ble High Court. In view of allotment letter dated 11.03.2003, housefed was to construct the flats within four years provided PUDA would have handed over the possession of the land and allowed the construction. After allotment of land, Housefed wrote various letters for permission to start the construction on above lands, but Estate Officer of GMADA and Engineering Wing of GMADA reported that due to stay granted by the Hon'ble High Court Consumer Complaint No.879 of 2017 7 in the area falling on Sector dividing road between Sector 79-80, the Sewer Line could not be installed through and such permission for construction of flats could not be granted. The OP raised the construction of flat within reasonable time and in July 2014 and the possession of the flat was offered to allottees. The complaint is alleged to be barred by time. The OP has controverted the other averments of complainant by denying any deficiency in service and unfair trade practice on its part and prayed for dismissal of the complaint.
3. The complainant tendered in evidence affidavit of Maninder Kaur Ex.C-A alongwith copies of documents Ex.C-1 to Ex.C-12 and closed the evidence. As against it, OP tendered in evidence affidavit of Rajinder Singh, Officiating Superintendent Engineer Ex.OP-A alongwith copies of documents Ex.OP-1 to Ex.OP-18 and closed the evidence.
4. We have heard the learned counsel for the parties and have also examined the record of the case. The counsel for OP contended that the complaint is barred by general principle of resjudicata and as such it is not maintainable. He laid emphasis on this point during arguments of the case. On the other hand, counsel for complainants contended that the case is not barred by resjudicata because the proceedings are summary in nature. The matter has been examined by us with the able assistance of counsel for the parties. After carefully scrutinizing the evidence on the record, we find force in the submission of counsel for OP. The complainants Consumer Complaint No.879 of 2017 8 have not booked this unit with OP and rather purchased it from Ravinder Goel. There is no dispute between the parties that complainants are not original allottees of said flat of OP and original allottee sold the allocation of category I to Manpuneet Singh and then Manpuneet Singh sold the same to Ravinder Goel and Ravinder Goel further sold it to complainants. The flat was re-allotted to complainants vide Ex.C-2 by OP on 01.03.2016, vide endorsement no.13181. Intimation was given to Ravinder Goyal as well by OP. Manpuneet Singh original allottee filed complaint no.135 of 2014 titled as Manpuneet Singh Vs. Housefed and another before the State Consumer Commission, U.T. Chandigarh, which was dismissed being devoid of any merits on 18.11.2014 by U.T. State Consumer Commission, Chandigarh vide Annexure OP-1. Said Manpuneet Singh filed appeal no.26 of 2015 before the National Commission and during pendency of that appeal, Manpuneet Singh sold his flat to Ravinder Goyal and withdrew his above appeal, vide Annexure OP-2. S. Patwinder Singh applied for category I flat on 22.02.2004 and he remained successful and letter for allocation of category I was issued to him vide Annexure OP-3 by OP. Thereafter, Dr. Manpuneet Singh purchased the allocation of category I flat from Patwinder Singh and re-allocation letter no.Hfed/TW/12787 dated 08.03.2006 was issued in his favour, vide Annexure OP-4. Dr. Manpuneet Singh deposited the amount and sold the flat to Ravinder Goel vide Annexure OP-5 and from Ravinder Goel, the present complainants purchased the said flat on 29.01.2016. Original letter Consumer Complaint No.879 of 2017 9 for allocation of category I flat in above scheme was issued to Patwinder Singh by OP on 24.03.2004 and thereafter OP transferred the allocation of category I flat in the name of Dr. Manpuneet Singh vide Ex.OP-2 dated 08.03.2006. Since, Manpuneet Singh lost his case in above complaint before State Consumer Commission UT Chandigarh and hence the present complaint being his successors in interest are bound by the above order of State Consumer Commission UT Chandigarh passed on 18.01.2014 in the above complaint. The principle of resjudicata is attracted in this case. The complainant is estopped from re-agitating the matter, once it has been decided by the competent Forum of law between their predecessor in interest and OP regarding the same subject matter. We have, thus, recorded this clear finding that the instant case is barred by principle of resjudicata and the present complaint is not maintainable and merits dismissal on this score. No other point needs to be touched, once the complaint is found not maintainable on account of principle of estoppels operating against the complainants.
5. As a result of our above discussion, the complaint filed by the complainants is ordered to be dismissed on the above ground.
6. Arguments in this complaint were heard on 13.12.2018 and the order was reserved. The certified copies of the order be communicated to the parties, as per rules.
Consumer Complaint No.879 of 2017 10
7. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (KIRAN SIBAL) MEMBER December 19, 2018.
(MM)