State Consumer Disputes Redressal Commission
Pearls Infrastructure Projects Ltd. vs Varun Mahajan on 2 May, 2016
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 896 of 2015
Date of institution: 12.8.2015
Date of Decision: 2.5.2016
Pearls Infrastructure Project Ltd., SCO No. 6, Sector 69, Mohali (Punjab)
through Sr. Marketing Manager
Appellant/Op
Versus
Varun Mahajan son of B.M. Mahajan, resident of House No. 355, Sector 9-
D, Chandigarh.
Respondent/Complainant
First Appeal against the order dated 17.6.2015
passed by the District Consumer Disputes
Redressal Forum, SAS Nagar (Mohali).
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Mrs. Surinder Pal Kaur, Member
Present:-
For the appellant : Sh. Pankan Jain, Advocate
For the respondent : Sh. Brij Mohan, Father of the
respondent
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
The appellant/Op (hereinafter referred as Op) has filed the present appeal against the order dated 17.6.2015 passed by the District Consumer Disputes Redressal Forum, SAS First Appeal No. 896 of 2015 2 Nagar(Mohali)(hereinafter referred as the District Forum) in consumer complaint No.652 dated 11.11.2014 vide which the complaint filed by respondent/complainant(hereinafter referred as complainant) was accepted with the direction to Ops as under:-
"(a) to complete the construction of the club house and make it fully operational for the use and benefits of the residents within a period of three months from the date of receipt of a certified copy of this order.
(b) further to pay to the complainant interest @ 12% per annum on the deposited amount of Rs. 35,000/- as club membership till the club facility is made operational to the use and benefit of the complainant.
(c) pay a lump sum compensation of Rs. 25,000/- (Rs.
Twenty five thousand only) for harassment, mental agony and costs of litigation."
2. Complaint was filed by complainant under the Consumer Protection Act, 1986 (in short 'the Act') against Op on the averments that this complaint has been filed by his father and GPA holder Mr. B.M. Mahajan. It was averred in the complaint that complainant is NRI and permanent resident of House No. 355, Sector 9-D, Chandigarh. He had purchased one plot measuring 250 sq. yards in Sector 104, Mohali from Op in January, 2010. Buyer's agreement was signed on 4.3.2010 between the complainant and Op. Complainant paid all the instalment on or before due dates except two due instalments for which Op demanded interest @ 24% and complainant had to shall out a sum of Rs. 39,329/- as interest before First Appeal No. 896 of 2015 3 handing over the possession. In July, 2010, Op had raised a demand of Rs. 35,000/- plus service tax towards Club Membership and IFMS of Rs. 25,000/- and service tax. Both these amounts were paid on 31.7.2010 and 23.7.2010, respectively but so far club building is still under construction after 4 years. Complainant wrote to Ops to refund the amount paid alognwith overdue interest to which Op did not pay any heed. The demand for paying club membership even when there was no such facility available nor the building was constructed and for IFMS when there was nothing to maintain, amounted to unfair trade practice. Notice was sent to Op on 9.9.2014 to refund the amount alongwith interest @ 24% p.a. but Ops did not bother even to reply. Op also demanded payment of maintenance, sinking fund @ Rs. 63/- per sq. yard for 5 years, administrative charges of Rs. 15,000/- plus service tax, electrification charges @ Rs. 300/- per sq. yards plus service tax and monthly maintenance charges of Rs. 2/- per sq. yards. These charges were untimely and unfair, accordingly, the complaint has been filed with the direction to Ops as under:-
"a) refund the amount of club membership, IFMS plus service tax and with interest @ 24% per annum to the complainant.
b) pay interest @ 24% per annum also on maintenance charge, electrification charges, administrative charges, totalling Rs. 1,92,698/- w.e.f. 30.6.2014 till the start of construction of the plot.
c) pay Rs. 2,00,000/- towards unfair trade practice and deficiency in service.First Appeal No. 896 of 2015 4
d) pay Rs. 1,00,000/- towards causing mental tension and harassment.
e) legal cost of Rs. 30,000/- may kindly be allowed."
3. Complaint was contested by Op, who filed their written reply taking preliminary objections that the complaint was false, frivolous and was filed with ulterior motive to harass Op, therefore, it was liable to be dismissed with special costs; complaint filed through GPA was not maintainable; the Forum did not have any jurisdiction to try this complaint as complicated questions of law and facts were involved, which was not possible to adjudicate in summary procedure, therefore, liable to be referred to the Civil Court; complaint was bad for non-joinder of necessary parties i.e. PACL Ltd., which was owner of the township, whereas Op is a small project management consultant; the complainant had not approached the Forum with clean hands and had suppressed the true facts; Hon'ble Forum did not have any territorial jurisdiction to try this complaint as the contract between the parties was signed at New Delhi. There was provision of referring the matter to Arbitrator under Arbitration & Conciliation Act, 1996 in case of any dispute as per the buyer's agreement the complainant was bound to pay charges apart from internal services, if any, outside EDC/IDC charges levied by the PUDA or by the Country Town Planning. Complainant had not followed those terms and conditions, therefore, the complaint was liable to be dismissed. On merits, it was admitted that plot No. B-1120 in Pearls City was allotted to the complainant. Despite issuance of various letters, the complainant had taken the possession only on First Appeal No. 896 of 2015 5 7.7.2014. The charges of Rs. 35,000/- were charged from the complainant of his club membership registration charges and club development expenses for the development of club building. Rs. 25,000/- were charged towards IFMS and there was no violation of any terms and conditions of the buyer's agreement. The charges were taken from the complainant as per buyer's agreement. It was denied that there was any unfair trade practice or any deficiency in service on the part of Op. Complaint was without merit, it be dismissed.
4. The parties were allowed by the learned District Forum to lead their evidence.
5. In support of his allegations, the complainant had tendered into evidence B.M. Mahajan Ex. CW-1/1, affidavit of Amarjit Chadha Ex. CW-1/2, GPA Ex. C-1, buyers agreement Ex. C-2, receipt Ex. C-3, letters Exs. C-4 to 7, affidavit Ex. CW-1/3, possession letter Ex. C-8, letter Ex. C-9, receipt Ex. C-10, letter Ex. C-11. On the other hand, Op had tendered into evidence affidavit of Gurpinder Brar Ex. Op-1/1, buyers agreement Ex. Op-1, statement of a/c Ex. Op-3, possession letter Ex. Op-4, letters Ex. Op-5 to 8.
6. After going through the allegations in the complaint, written version filed by Ops, evidence and documents brought on the record, the complaint was allowed as referred above on account of deficiency in service in completing its construction and to make it operational.
First Appeal No. 896 of 2015 6
7. We have heard the learned counsel for the appellant Sh. Pankaj Jain, Advocate and father of the respondent/complainant Sh. Brij Mohan.
8. So far as the first relief is concerned, the payment was taken in the year 2010 for membership and development of the club building. These charges have been taken according to Clause No. 18 of the agreement, which reads as under:-
"18. The Allottee may become the member of Club if any, developed by the Promoter in the said Township on payment of Club Membership Registration Charges (CMRC) and club development expenses. The Club and other common facilities such as swimming pool, health club, etc. shall be managed by the Promoter or its nominee and the Allottee undertakes not to interfere in the management and/or maintenance thereof in any manner whatsoever. Thus the Allottee shall have the right to use the club and other common facilities only on payment of such charges as may be determined by the Promotor from time to time and only on due observance of rules and regulations framed by the Promotor/its nominees but any such user shall not give the Allottee the Ownership rights in the premises of club, land underneath and its equipments etc., which shall continue to vest with the Promoter at all times."
9. No outer date was given for construction of the Club building. Even if it has not been so given in the buyer's agreement then Op is entitled to reasonable time to raise its building and its First Appeal No. 896 of 2015 7 development. As per the order passed by the District Forum on 17.6.2015 Op has been directed to complete it within a period of three months from the date of order i.e. upto 17.9.2015, therefore, sufficient time has been allowed to the complainant to complete the building, therefore, this part of the order is correct and we does not find anything to make any amendment in this order.
10. The next point is, interest has been allowed on a sum of Rs. 35,000/- deposited by the complainant till it is made operational. However, it has been argued by the counsel for the appellant/Op that the club can be made operational only in case Members raise their construction of the Houses. Although the complainant has taken possession of the plot in the year 2014 but so far no construction has been raised by the complainant. The club house was for the use of the Members and in case adequate number of members are not residing there then how the Club can be made operational and who will be responsible for its charges. GPA of the complainant, who was present in person was unable to tell how he will use the club house in case he has not raised the construction over the plot purchased from Op. Therefore, the order so passed by the District Forum is harsh to allow interest @ 12% p.a. on a sum of Rs. 35,000/- till club facility is made operational. It requires amendment. He is entitled to interest in case he has raised construction and has started to reside there. In this way, this part of the order can be modified to the extent that complainant will be entitled interest @ 12% p.a. from the date complainant started residing there and in case club house is not made out operation.
First Appeal No. 896 of 2015 8
11. In the appeal, he has also raised the question of jurisdiction that the complaint has been filed by GPA. Learned District Forum has dealt in detail that for enforcing the right of the complainant for getting complete or to manage his affairs of the complainant to execute the deed of conveyance etc. or enter into a development agreement with the land developer or a builder. In the case of "Suraj Lamp & Industries Pvt. Ltd. versus State of Haryana & Another", SLP No. 13917 of 2009 decided on 11.10.2011, it was held that GPA cannot be used to transfer the immoveable property. Since, it was not a case of transfer of immoveable property, therefore, the ratio of the law in case "Suraj Lamp & Industries Pvt. Ltd. versus State of Haryana & Another"(supra) is not applicable to the facts and circumstances of the present case.
12. The next point raised is that Rs. 25,000/- has been granted towards compensation and cost of litigation. Since Op failed to make his commitment with regard to the construction of the club house for which he had to knock the door of the Court, a sum of Rs. 25,000/- has been allowed on account of harassment and cost of litigation and that the complainant has contested the litigation first before the District Forum and then before the State Commission for which a sum of Rs. 25,000/- is not on the higher side.
13. No other point has been raised.
14. In view of the above, we partly accept the appeal. With regard to Part (b) of the order of the District Forum that complainant will be entitled to interest @ 12% p.a. on a sum of Rs. 35,000/- from the date he started to reside in the building of his plot, in case club First Appeal No. 896 of 2015 9 house is not operational. There will be no change in part (a) and (c) of relief granted by the District Forum.
15. The appellant had deposited an amount of Rs. 25,000/- and Rs. 25,000/- with this Commission in the appeal. Out of these amounts, Rs. 25,000/- be remitted to respondent/complainant and remaining amount with interest accrued thereon, if any, be remitted by the registry to appellant/Op by way of a crossed cheque/demand draft after the expiry of 45 days, from the despatch of the order to the parties; subject to stay, if any, by the higher Fora/Court.
16. Remaining amount, if any due as per the above order, shall be paid by the appellant to the respondent/complainant within 30 days from the receipt of the copy of the order.
17. The arguments in this appeal were heard on 27.4.2016 and the order was reserved. Now the order be communicated to the parties as per rules.
18. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran)
Presiding Judicial Member
May 2, 2016. (Surinder Pal Kaur)
as Member