State Consumer Disputes Redressal Commission
Trilochan Singh vs M/S Nitishree Infrastructure Ltd. on 1 February, 2018
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
Consumer Complaint No.380 of 2016
Date of Institution : 09.12.2016
Order reserved on: 25.01.2018
Date of Decision : 01.02.2018
Sh. Tirlochan Singh S/o S. Gurdial Singh, of 40 years old, R/o B-42,
Pilot Court, Essel Towers, Sector 28, M G Road, Gurgaon, Haryana
through his General Power of Attorney Sh. Hari Sarup Ahuja S/o
Late Sh. Dwarka Dass, R/o 412, Guru Gobind Singh Avenue,
Jalandhar, Punjab. 9592277770 (M).
.....Complainant
Versus
1. M/s Nitishree Infrastructure Ltd. Regd, Office: 78-B, Sector D-
2, Group II, DDA Flat, Kondli Gharoli, Mayur Vihar Phase-II,
Delhi-110 096, through its Managing Director.
2. M/s Shourya Towers Pvt. Ltd., Regd. Office: Shop no.108, First
Floor, Vardhman Mayur Market, Mayur Vihar, Phase-3, Delhi-
110096, through its Managing Director.
.....Opposite Parties
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. Surinder Pal Kaur, Member.
Present:-
For the complainant : Sh. Aruk K. Walia, Advocate For the opposite parties : Sh. Ramnik Gupta, Advocate ................................................................................................. J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The complainant has filed this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act"), against opposite parties (OPs) on the averments that OPs developed residential dwelling units in the name of Shourya Greens at Surya Enclave, Jalandhar in the year 2008. He applied for allotment of residential dwelling unit in the above project of OPs by depositing Consumer Complaint No.380 of 2016 2 Rs.5,72,555/- as advance. OP no.1 allotted him one residential dwelling unit no.E1-601 of 1565 square feet, vide letter dated 31.01.2009 with some amenities/facilities like lift, car parking, power back up, roads, parks, etc. The total sale price of the above units is Rs.22,11,000/-. He deposited Rs.14,54,019/- with OPs till September 2012. Vide letter dated 08.09.2012, OP no.2 demanded balance amount of Rs.2,63,646/- by 25.09.2012 with an undertaking that the possession would be handed over till April 2013 to him. He deposited the same, vide cheque no.887308 with OPs. OP no.2 demanded another amount of Rs.3,49,999/- from him, vide letter dated 12.11.2013, which was deposited by him vide cheque no.702738. Upto 11.03.2014, he deposited total amount of Rs.21,04,054/- with OPs in cash as well as through cheques on different dates against the sale price of above residential dwelling unit no.E1-601, but OPs failed to deliver the possession thereof to him. He served legal notice dated 25.02.2016 through speed post upon OPs demanding the possession of the above unit or in the alternative to refund the deposited amount with 24% interest per annum, but to no effect. The OPs failed to complete the construction of the above mentioned residential unit. The complainant has alleged deficiency in service and unfair trade practice on the part of OPs and prayed that OPs be directed to pay Rs.45,00,000/- in all in terms of money to him for mental harassment, deficiency in service and unfair trade practice.Consumer Complaint No.380 of 2016 3
2. Upon notice, OPs appeared and filed written reply by raising preliminary objections that the complaint is not maintainable, as there is arbitration clause in the agreement dated 06.07.2007. Section 8 of The Arbitration and Conciliation Act, 1996 provides that every judicial authority, before which an action is brought in matter which is subject of an arbitration agreement, shall if party so applies, not later than when submitting his first statement on substance of dispute, refer the parties to arbitration. The complaint is barred by time, as the possession of the above residential unit was to be delivered by April 2013 and the present complaint has been filed on 09.12.2016. It is further averred that the OP Company commenced the above project in 2006 after original sanction plan was received on 31.05.2006. Even first approval of map was received after gap of more than eight months of filing the same with trust, hence the project was delayed since inception only account of delay caused by JIT in providing necessary approval for the projects, which was beyond the control of the OPs, hence operative of force majeure condition, thus, the date of possession is excused on account of such reasons. The present complaint is complex in nature, which need detailed scrutiny of various technical aspects and payments made since the unsubstantiated allegation raised by complainant cannot be decided in summary manner under the Act. It is further averred that complainant bought the above residential unit from the open market and not directly allotted by OPs. It is denied that the basic sale price was Rs.22,11,000/- including other charges. OPs Consumer Complaint No.380 of 2016 4 have controverted the other averments of complainant and prayed for dismissal of the complaint.
3. The complainant tendered in evidence his affidavit Ex.C-A alongwith copies of documents Ex.C-1 to Ex.C-6 and closed the evidence. As against it, OPs tendered in evidence affidavit of Parveen Chand Mishra, Sr. General Manager Ex.OP-A alongwith copies of documents Ex.OP-1 and Ex.OP-2 and closed the evidence.
4. We have heard learned counsel for the parties and have also examined the pleadings and respective evidence of the parties on the record. Ex.C-1 is the allotment letter dated 31.01.2009 issued by OPs to complainant. The super built area is at the rate of Rs.1355/-. The residential dwelling unit has been agreed to be sold to complainant for Rs.22,11,000/- including other charges. The OPs issued demand letter Ex.C-2 to complainant calling upon him to pay balance amount within 15 days of this letter to the tune of Rs.2,63,646/-. The OPs have received the payment in advance of Rs.14,54,019/-. The OPs raised this demand on 08.09.2012 from complainant. Subsequently, OPs wrote letter Ex.C-3 dated 12.11.2013 to complainant calling upon him to pay the total amount of Rs.3,49,999/- including Rs.10,491/-, as service tax. The payment details of amounts made by complainant to OPs are Ex.C-4 on the record, which has proved this fact that he has paid the amount of Rs.21,04,054/-, out of which the amount of Rs.30,328/- has been shown as service tax. The complainant has alleged that OPs have Consumer Complaint No.380 of 2016 5 not delivered the possession to him despite passage of many years. He has cleared the substantial amounts of sale consideration, but OPs failed to deliver the possession of the above residential dwelling unit to him. Legal notice sent by him to OPs is Ex.C-5 on the record, supported by postal receipt and general power of attorney document vide Ex.C-6. The complainant also tendered in evidence his affidavit Ex.C-A in support of his case. He deposed on oath that he paid the substantial amounts of the residential unit to OPs in cash and through cheques on different dates, as demanded by them, but they failed to deliver the possession of the above unit to him. This evidence has been furnished by complainant, as embodied in his affidavit Ex.C-A on the record.
5. The version of OPs is that as per clause 4 of agreement dated 06.07.2007, there is stipulation for referring the matter to Arbitrator for adjudication of the matter under Section 8 of the Arbitration and Conciliation Act 1996. All the judicial authorities are bound to refer the matter to arbitrator for reconciliation of dispute, when there is clause for arbitration, as contended before us. The OPs also took up the plea that complaint is barred by time, because the time prescribed for filing the complaint under Section 24-A of C.P. Act is of two years from the date of accrual of cause of action. The accrual of cause of action herein is the agreed date of possession i.e. April 2013 and hence the complaint is barred by time. The complaint has been contested by OPs on the above two counts only. Memorandum of understanding dated 06.07.2007 was Consumer Complaint No.380 of 2016 6 executed between the parties vide Ex.OP-2 on the record. Ex.OP-A is the affidavit of Praveen Chand Mishra, Deputy General Manager of OPs. He has deposed that he has been authorized by virtue of resolution by OPs to pursue and depose in this case vide Ex.OP-1. He admitted this fact regarding allotment of the above residential dwelling unit to complainant. He admitted the payment of money, as referred to above by complainant. He raised only two points, first for settlement of dispute through arbitration and second is that complaint is barred by time.
6. From conclusion of evidence and pleadings of the parties, we find that the case of the complainant succeeds in this case. Firstly, we touch the point of referring the matter to Arbitrator. Section 3 of C.P. Act provides additional remedy to the complainant either to approach the Consumer Forum or to approach any other Forum for resolution of the dispute. Herein, the complainant has approached the Consumer Forum for settlement of dispute and in view of availability of additional remedy provided under the Act, it cannot be said that the jurisdiction of Consumer Forum stood whittled down on this point. We are supported by law laid down by the Apex Court in "National Seeds Corporation Limited Vs. M. Madhusudhan Reddy and another" 2012(2)CLT-382/383 and in Fair Air Engineers (P) Ltd. vs. N. K. Modi (1996) 6 SCC 385. After considering the provisions of the C.P. Act 1986 and in particular Section 3 of the Act of 1986 and Arbitration Act, it has been held that the Consumer Fora created under the Act of 1986 are at liberty to Consumer Complaint No.380 of 2016 7 proceed with the matter in accordance with the provisions of the Act, rather than relegating the parties to the arbitration proceedings, pursuant to an agreement entered into between the parties. In view of additional remedy conferred by Section 3 of C.P. Act, giving consumer an option either to approach the Consumer Forum or other alternative mode of resolution of dispute and as such it cannot be said that the jurisdiction of Consumer Forum has been taken away. The contention of counsel for OPs on this point is not accepted by us.
7. On this point, as to whether the complaint is barred by time, as canvassed by counsel for the OPs, we find that the cause of action is continuing one in this case. The cause of action is not fixed one and it is recurring one. The OPs agreed to deliver the possession by April 2013 of residential unit to complainant and he has paid the substantial sale amounts to OPs, but they have not delivered the possession of the dwelling unit to the complainant, which was allotted to him. The agreed time therefor was April 2013, as per written version of OPs, but now the year 2018 has started running and there is no completion certificate shown to us by the counsel for the OPs as yet, as mandated by Section 14 of PAPRA Act, 1995 in this regard. There is no evidence on the record that OPs performed their part of the transaction, when they have received the major amounts of the sale consideration from the complainant. Consequently, the cause of action is continuing one in this case till the delivery of possession of above unit by OPs to complainant or to Consumer Complaint No.380 of 2016 8 refund of the money deposited by complainant with OPs. The complainant seeks refund of the deposited amount on account of deficient service of OPs. The OPs are not only deficient in service, but are guilty of unfair trade practice as well. Since, they have utilized the hard earned money of the complainant for so many years without bothering to develop the project and to deliver the possession within scheduled time, hence they are guilty of unfair trade practice. We are fortified by law laid down by the Apex Court in "Pariwar Co-operative Housing Society Limited Vs. Chandrashekhar M. Virkud and another" 2014(1)RCR(Civil)-574 and the judgment of National Commission in "H.C. Malhotra and others Vs. Ansal Buildwell Ltd." 2006(2)CLT-587 and the law laid down in "Emaar MGF Land Limited Vs. Karnail Singh"
2014(4)RCR(Civil)136 in this regard. Reference may also be made to law laid down by Chandigarh State Consumer Disputes Redressal Commission in "Varun Bakshi and others Vs. M/s Unitech Limited and others" 2016(1)CLT-175. We have thus reached the conclusion that on account of deficiency in service and unfair trade practice committed by OPs, the complainant is entitled to seek the refund of the deposited amounts with interest. The complaint of the complainant, thus, succeeds with regard to refund of the deposited amounts.
8. As a result of our above discussion, we accept the complaint of the complainant and direct OPs to refund the entire deposited amounts of the complainant with interest @12% per Consumer Complaint No.380 of 2016 9 annum from the date of their deposits till actual payment. The complainant is also awarded compensation of Rs.1,00,000/- for mental harassment and Rs.30,000/- as cost of litigation payable by OPs to complainant. The above amounts shall be payable by OPs to complainant within two months from the date of receipt of certified copy of the order.
9. Arguments in this complaint were heard on 25.01.2018 and the order was reserved. The certified copies of the order be communicated to the parties, as per rules.
10. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (SURINDER PAL KAUR) MEMBER February 01, 2018.
(MM)