Sandeep Kumar v. S.M.V.Agencies Private Limited

3. Keshav Mittal , Project Advisor Jaipuria`s Sunrise Greens, Marketing Office, Flat No.A-003, Jaipuria Sunrise Apartments, VIP Road, Zirakpur, Distr ict Mohali .

4. Jaipuria`s Sunrise Greens, Marketing Office, Flat No.A-003, Jaipuria Sunrise Apartments, VIP Road, Zirakpur, Distr ict Mohali .

. . . . Opposite Part ies

Complaint under Section 17 of the Consumer Protection Act, 1986.

BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

MR. DEV RAJ, MEMBER

Argued by: Sh. Sandeep Kumar, Advocate/complainant no.1, in person. Sh. Kabir Sarin, Advocate for the Opposite Parties.

J U S T I C E S H A M S U N D E R ( R E T D . ) , P R E S I D E N T .

The facts, in brief , are that the Opposite Part ies, launched a project , called Jaipuria`s Sunrise Greens, to construct f lats , at VIP Road, Zirakpur. Since, the complainants were in need of a house, for their residence, they applied for booking a residential f lat , with the Opposite Part ies, vide application dated 19.02.2011. The complainants were al lotted three bedroom flat bearing no.L-201, f loor 2F, having super area 1747 square feet , at the basic sale price of Rs.38,43,400/- , on 07.03.2011, vide al lotment let ter Annexure C-1, of the even date. As per the terms and condit ions contained, in the al lotment let ter-Annexure C-1, the possession of f lat , was to be delivered to the complainants, after the expiry of a period of three months, from the date of payment of last instal lment, in respect of the same (flat) . According to the instal lment payment plan, the 8 ^th

instal lment to the tune of Rs.3,83,340/- was required to be paid upto 28 ^th

June 2008 ( infact 20.06.2012) , whereas, the payment of last instal lment to the tune of Rs.1,92,170/- , was required to be made, after the offer of possession, in respect of the f lat , in question, was given by the Opposite Part ies, i .e . by 31.08.2012. In other words, the possession of f lat , in question, was to be delivered to the complainants, on 31.08.2012. The complainants paid a sum of Rs.5,76,500/- , at the t ime of booking of the f lat i .e . on 19.02.2011. The first instal lment towards price of the f lat amounting to Rs.3,84,350/- , was paid by the complainants, on 27.04.2011, vide cheque number 329767 of State Bank of Patiala. The second instal lment, amounting to Rs.3,84,340/- was paid, by the complainants, on 26.06.2011, vide cheque number 329768, of the State Bank of Patiala, High Court Branch, Chandigarh. The balance amount was to be paid by the complainants, after taking home loan from the State Bank of Patiala. Tripart i te Agreement amongst the State Bank of Patiala, complainants and the

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Opposite Part ies was executed. Home loan, to the tune of Rs.24 lacs, was sanctioned by the State Bank of Patiala, on 21.07.2011. However, i t disbursed loan in favour of the complainants, to the tune of Rs.23,06,040/- , which amount was paid to the Opposite Part ies, by way of instal lments, on or before the due dates, in respect of the part price of f lat , in question. I t was stated that the complainants were paying flat rate of interest i .e . @12.5% P.A., on the loan amount aforesaid.

2. I t was further stated that , in Clause 22 of the al lotment let ter , i t was specifically mentioned that the project launched by the Opposite Part ies, was on free-hold basis, and the sale deed, in respect of the f lat , in question, would be executed by them (Opposite Part ies) in favour of the complainants. According to Clause 1 of the al lotment let ter , in case, the complainants were late, or fai led to make payment of the price of f lat , within the st ipulated t ime, then they would be l iable to pay interest @18% P.A., on the delayed payment, for the period of delay. Under Clause 24 of the al lotment let ter , i t was further provided that the Opposite Part ies shall provide internal roads, water l ines, sewer l ines, electric l ines etc. Under Clause 10 of the al lotment let ter , i t was provided that the Opposite Part ies shall complete al l the civil work, plumbing, sanitary work, joinery, painting and polishing, internal electrif ication etc.

3. I t was further stated that though a sum of Rs.36,51,230/- , towards part price of the f lat , in question, was paid by the complainants, and only 5% towards the remaining price of the same, was to be paid at the t ime of offer of possession, yet , the same (possession) was not offered to them (complainants) , by 31.08.2012. I t was further stated that by not offering possession of the f lat , in question, complete in al l respects, after obtaining necessary permissions etc. , from the Competent Authorit ies, and, thereby, not adhering to the commitment, made by the Opposite Part ies, they indulged into unfair trade practice.

4. I t was further stated that , on account of these reasons, the complainants had to take on rent an accommodation, for their residence, and were paying a sum of Rs.9,000/- , as rent , per month. I t was further stated that , according to Clause 35 of the al lotment let ter , the complainants also became enti t led to compensation @Rs.5/- square feet of the super area, per month, for the period of delay of possession of the f lat , in question. I t was further stated that even occupation and completion cert if icates had not been obtained by the Opposite Part ies, from the Competent Authorit ies, without which, legal possession of the f lat , in question, could not be delivered to the complainants. I t was further stated that , on account of the acts of omission and commission of the Opposite part ies, a lot of mental agony and physical harassment, was caused to the complainants.

5. I t was further stated that , by not delivering possession of the f lat , in question, by the st ipulated date; using the amount, deposited by the complainants, for earning profi ts , for such a long t ime; and by not paying rent

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@Rs.9,000/- per month, for which the complainants had taken on rent an accommodation, the Opposite Part ies were not only deficient , in rendering service, but also indulged into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was f i led, directing the Opposite Part ies, to deliver possession of the f lat , in question, al lotted in their favour; pay interest @18% P.A., on the amount of Rs.36,51,230/- , for eleven months, which came to be Rs.6,02,453/-; Rs.9,000/- P.M., paid by them, as rent , from 31.08.2012 t i l l possession of the f lat , in question, was delivered; compensation @Rs.5/- square feet of the super area, per month, for the period of delay; compensation, to the tune of Rs.1.50 lacs, for mental agony and physical harassment; and cost of l i t igation, to the tune of Rs.25,000/- .

6. The Opposite Part ies, in their joint writ ten version, pleaded that this Commission has got no terri torial and pecuniary Jurisdiction, to entertain and decide the instant complaint . I t was further pleaded that since the complicated and complex questions of fact and law, are involved, in this case, the adjudication whereof, is not possible by this Commission, proceedings before which are summary, in nature. The factum of booking of f lat , by the complainants; al lotment of the same, in their favour; and payment of a sum of Rs.36,51,230/- , towards part price thereof, was admitted. I t was, however, stated that the date for delivery of possession of the f lat , in question, as 31.08.2012, was only under the down payment plan, whereas, the complainants opted for the instal lment payment plan, according to which, the same was to be delivered to them, by 30.11.2012 i .e. three months, after the payment of last instal lment. I t was further stated that , as per Clause 35 of the terms and condit ions of the al lotment let ter , in case of non-delivery of possession of the f lat , in question, by the st ipulated date, the Opposite Part ies were only l iable to pay compensation @Rs.5/- square feet of the super area, per month, for the period of delay. I t was further stated that no documentary evidence, in the shape of rent receipts, was produced by the complainants, to prove that they had been actually residing, in a rented accommodation, and paying a sum of Rs.9,000/- per month, as rent . I t was further stated that the part ies were bound by the terms and condit ions of the al lotment let ter , which were signed by them, with eyes wide open, and could not go beyond the same. I t was further stated that , no rel ief , could be granted, beyond the terms and condit ions of the al lotment let ter . I t was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Part ies, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.

7. Sh. Sandeep Kumar, complainant no.1, in support of the averments,

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contained in the complaint , submitted his affidavit , by way of evidence, alongwith which, a number of documents were at tached.

8. The Opposite Part ies, in support of their case, submitted the affidavit of Sh. Rajneesh Sharma, their Officer, by way of evidence, alongwith which, a cert if ied true copy of resolution dated 21.08.2009, was at tached.

9. We have heard Sh. Sandeep Kumar, Advocate/complainant no.1, in person, Counsel for the Opposite Part ies, and, have gone through the evidence and record of the case, carefully.

10. The first question, that fal ls for consideration, is , as to whether, this Commission has got terri torial Jurisdiction, to entertain and decide the complaint , or not . Annexure C-1 is a copy of the al lotment let ter dated 07.03.2011. I t is evident, from this document, at page 40, that i t was signed by the authorized signatory of the Opposite Part ies, at Chandigarh. This document also bears the signatures of the al lottees. Since the al lotment let ter was signed at Chandigarh, by an authorized representative of the Opposite Part ies, as also by the complainants, and was issued at Chandigarh, on 07.03.2011, a part of cause of action, arose to the complainants, to f i le the instant complaint , before this Commission. According to Section 17 of the Act, a Consumer Complaint can be fi led, by the complainants, at a place, where a part of cause of action arose to them. Under these circumstances, i t is held that this Commission, at Chandigarh, has got terri torial Jurisdiction to entertain and decide the complaint .

11. The second question, that fal ls for consideration, is , as to whether, this Commission, has got pecuniary Jurisdiction, to entertain and decide the complaint , or not . The complainants have sought one of the rel iefs of legal possession of f lat , in question, at the original booking price of Rs.38,43,400/- . Not only this , the complainants have also sought other rel iefs of compensation, rent , including costs, in the sum of Rs.9,72,538/- , as detailed in paragraph number 15 of the complaint . Section 17(1) of the Act, reads as under:-

"17. Jurisdiction of the State Commission .

(1) Subject to the other provisions of this Act, the State Commission shall have jurisdiction—

(a) to entertain—

(i) complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees twenty lakhs but does not exceed rupees one crore ; and

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( i i) appeals against the orders of any Distr ict Forum within the State; and

(b) to call for the records and pass appropriate orders in any con- sumer dispute which is pending before or has been decided by any Distr ict Forum within the State, where i t appears to the State Commission that such Distr ict Forum has exercised a jurisdiction not vested in i t by law, or has fai led to exercise a jurisdiction so vested or has acted in exercise of i ts jurisdiction i l legally or with material irregulari ty".

12. Since, physical possession of the f lat , in question, at the original booking price of Rs.38,43,400/-plus other rel iefs of compensation, rent , including costs, in the sum of Rs.9,72,538/- , have been sought, the aggregate value of the goods or services, as well as of the compensation, rent , including costs, claimed is required to be taken into consideration, for determining the pecuniary Jurisdiction of this Commission. Similar principle of law, was laid down, in Quali ty Foils India Pvt. Ltd. Vs. Bank of Madura Ltd. , and Anr. , II (1996) CPJ 103 (NC), a case decided by a four Member Bench of the National Consumer Disputes Redressal Commission, New Delhi , which reads as under :-

"In our view, where a claim of compensation is pleaded in a consumer complaint , then the total value of the goods and/ or services as well as that of compensation would determine the pecuniary l imit of jurisdiction. I t is the aggregate value of the goods and compensation or the aggregate value of the services as well as that of compensation that determines the pecuniary jurisdiction. As we read the provisions of Section 17(1)(a) [and for that matter the provisions of Section 11(1) and Section 21(a)(i) which are in pari-materia the cri teria of the value of goods or services if claimed without any compensation would govern the jurisdiction of the Consumer FORA. Where the complainant gives the value of the goods and compensation or the value of the services and compensation, then the question arises whether each one of them should exceed or cross the hurdle of the pecuniary jurisdiction. In some cases, the value of the goods or the compensation claimed and for that matter the value of the services and the compensation claimed may be such that if considered separately i t wil l fal l in the jurisdiction of the Distr ict Forum or State Commission whereas if considered on the basis of the

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aggregate, i t may fall within the jurisdiction of National Commission or State Commission. The intention of the Legislature is to give the jurisdiction to the Consumer FORA based on the total "value" of the goods and compensation, if any, or in other case the value of the services and compensation if any. Any other interpretat ion would lead to conflict of jurisdiction. Even though the Legislature has not mentioned the word aggregate before the word value of the goods or services, in the context of provisions of the Act, the intention is clear to give jurisdiction based on the quantum of rel iefs put together, in other words, aggregate of the value of the goods and compensation or aggregate of the value of services and compensation, or on the aggregate value of the goods and services and compensation"

13. Since the aggregate value of the goods or services and the compensation, including rent and costs claimed, in this case, exceeds Rs.20 lacs, but not beyond Rs.1 crore, this Commission, has pecuniary Jurisdiction to entertain and decide the complaint . The submission of the Counsel for the Opposite Part ies, in their joint writ ten reply, that this Commission has no pecuniary Jurisdiction, to entertain and decide the complaint , thus, being devoid of merit , must fai l , and the same stands rejected.

14. The third question, that fal ls for consideration, is , as to whether, complicated and complex questions of fact and law are involved in this complaint , the adjudication whereof, is not possible, by this Commission, proceedings before which are summary, in nature. I t may be stated here, that no complicated and complex questions of fact and law, are involved, in this complaint , the adjudication whereof is not possible by this Commission, though the proceedings before i t are summary, in nature. I t is a simple case of al lotment of a f lat , and non-delivery of possession thereof. As stated above, the part ies are governed by the terms and condit ions, contained in the al lotment let ter dated 07.03.2011, copy whereof is Annexure C-1. As stated above, in the terms and condit ions of the al lotment let ter , i t was clearly stated, as to what would be the consequences, if the delivery of possession of the f lat , in question, was not made by the st ipulated date. Under these circumstances, by no stretch of imagination, i t could be said that complicated and complex questions of fact and law, are involved, in the instant complaint , which requires examination and cross examination of the witnesses, and analysis of voluminous evidence. In J .J .

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Merchant (Dr.) V. Shrinath Chaturvedi, IV (2002) SLT 714 =III (2002) CPJ 8 (SC) =2002 CTJ 757 (SC) (CP), the Hon`ble Supreme Court , held as under:-

"This submission also requires to be rejected because under the Act, for summary or speedy tr ial , exhaustive procedure in conformity with the principles of natural just ice is provided. Therefore, merely because i t is mentioned that Commission or Forum is required to have summary tr ial would hardly be a ground for directing the consumer to approach the Civil Court . For the tr ial to be just and reasonable, long-drawn delayed procedure, giving ample opportunity to the l i t igant to harass the aggrieved other side, is not necessary. I t should be kept in mind that legislature has provided alternative, efficacious, simple, inexpensive and speedy remedy to the consumers, and that should not be curtai led, on such ground. I t would also be total ly wrong assumption that because summary tr ial is provided, just ice cannot be done, when some questions of fact are required to be dealt with or decided. The Act provides sufficient safeguards".

15. In CCI Chambers Coop. Hsg. Society Ltd. V. Development Credit Bank Ltd. V (2003) SLT 185=III (2003) CPJ 9 (SC)=2003 CTJ 84 (SC) (CP), the Hon'ble Supreme Court held as under:-

"It cannot be denied that Foras at the National Level, the State level and at the Distr ict level have been consti tuted under the Act with the avowed object of providing summary and speedy remedy in conformity with the principles of natural just ice, taking care of such grievances as are amenable to the jurisdiction of the Fora established under the Act. These Foras have been established and conferred with the jurisdiction in addit ion to the conventional Courts. The principal object sought to be

achieved by establishing such Foras is to rel ieve the conventional Courts of their burden which is ever-increasing with the mounting arrears and whereat the disposal is delayed because of the complicated and detailed procedure, which at t imes is accompanied by technicali t ies. Merely because reading of evidence is required, or some questions of fact and law arise which would need to be investigated and determined, cannot be a ground for shutt ing the

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doors of any Forum under the Act to the person aggrieved".

16. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. The submission of the Counsel for the Opposite Part ies, in their writ ten reply, that since complicated and complex questions of fact and law are involved in this complaint , the adjudication whereof is not possible, by this Commission, proceedings before which are summary, in nature, thus, being devoid of merit , must fai l , and the same stands rejected.

17. The complainants, as is evident from the record, did not opt for down payment plan, but opted for instal lment payment plan. The basic price of the f lat , in question, which was al lotted, in favour of the complainants, as is evident, from the al lotment let ter , copy whereof is Annexure C-1, is Rs.38,43,400/- . I t is further evident, from the record that the complainants paid a sum of Rs.36,51,230/- , towards part price of the f lat . I t is further evident, from the al lotment let ter , that offer of possession of the unit , in question, was to be given on 31.08.2012, in down payment plan, and after three months of completion of the period of instal lment plan, subject to receipt of entire basic price, extra charges, registrat ion charges, and any other charges, as may be intimated by the Company. I t was further provided, in the al lotment let ter that offer of delivery of possession of the unit , in question, was to be given, after the execution of the sale deed, in favour of the al lottees. I t is further evident, from page 43 of the f i le, forming part of the al lotment let ter , that the last instal lment, as per the instal lment plan, was to be paid by the complainants, on 31.08.2012. As such, the complainants were to be offered possession of the unit , in question, by 30.11.2012, i .e . three months, after the payment of last instal lment. Admittedly, the possession of unit , in question, by 30.11.2012, was not offered to the complainants, complete in al l respects. Even t i l l the date of f i l ing the complaint , or t i l l today, possession of the f lat , had not been delivered to the complainants. By not offering possession of the f lat , in question, to the complainants, by 30.11.2012, as per the terms and condit ions of the al lotment let ter , the Opposite Part ies, thus, mislead them (complainants) . The Opposite Part ies were, thus, guil ty of indulgence into unfair trade practice, on this score.

18. The next question, that fal ls for consideration, is , as to whether, the complainants are enti t led to possession of the f lat , in question, or not . Since the f lat , in question, was al lotted, in favour of the complainants, and they also paid a sum of Rs.36,51,230/- , towards part price of the same, and only last

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instal lment was required to be paid, by them, they were certainly enti t led to possession of the same. By not delivering the possession of f lat , in question, by the st ipulated date, and retaining the hard earned money, deposited by the complainants, towards part price of the same, (f lat , in question), the Opposite Part ies were also deficient , in rendering service. I t is , therefore, held that the complainants are enti t led to the possession of f lat , in question, complete in al l respects, as per the provisions of law.

19. The next question, that fal ls for consideration, is , as to whether, the complainants are enti t led to interest @18% P.A., on the amount deposited by them, towards the f lat , in question, from 31.08.2012, t i l l the possession was delivered to them, or not . I t may be stated here, that , in the instant case, the complainants have sought, one of the rel iefs, as possession of the f lat , in question. No doubt, the Opposite Part ies could not offer the possession of f lat , in question, to the complainants, by the st ipulated date. Even t i l l date, there is no sign of construction of f lat , or offer of possession thereof, to the complainants. As stated above, the part ies are bound by the terms and condit ions of the al lotment let ter . According to Clause 35 of the al lotment let ter , in the event of delay, in delivery of possession of f lat , in question, the complainants were enti t led to compensation/penalty @Rs.5/- square feet of the super area, per month, for the period of delay. When a part icular Clause in the al lotment let ter was provided for the payment of compensation, in the event of delay, in delivery of possession, the complainants, who signed the same, with eyes wide open, were bound by the same. In Bharathi Knit t ing Company vs. DHL Worldwide Express Courier Division of Airfreight Ltd. (1996) 4 Supreme Court Cases 704, a case decided by a three Judge Bench of the Hon`ble Supreme Court , i t was held that when the part ies have contracted and l imited their l iabil i t ies, they are bound by the same, and rel ief beyond the same could not be granted. The principle of law, laid down, in the aforesaid case, is fully applicable to the facts of this case. The complainants, are, thus, only enti t led to compensation/penalty @Rs.5/- square feet of the super area, per month, for the period of delay i .e . from 30.11.2012, t i l l the possession was delivered to them.

20. The complainants also claimed rent @Rs.9,000/- per month, on the ground, that they took on rent an accommodation, for their residence, due to non-delivery of possession of the f lat , in question, by the st ipulated date. No doubt, copy of the Rent Agreement/deed dated 01.03.2012 was placed, on record, by the complainants, which was executed between Sh. Ramesh Chand, Landlord

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and Sh. Sandeep Kumar (complainant no.1). However, no documentary evidence, in the shape of rent receipts, was produced, on record, to show that actually the complainants reside therein, and pay rent @Rs.8000/- or Rs.9,000/- per month. Even otherwise, as stated above, once, as per the terms and condit ions of the al lotment let ter , the complainants were enti t led to compensation/penalty, they could not be said to be enti t led to the al leged rent .

21. A lot of mental agony and physical harassment, was caused to the complainants, on account of non-delivery of possession of f lat , in question, by the st ipulated date. One can visualize the plight of the al lottees, who were al lotted a f lat , and even after making payment of more than 90% of the price thereof, they were not delivered physical possession of the same (flat) , for more than about eleven months, beyond the st ipulated date. Tremendous mental agony and physical harassment, was caused to the complainants, on account of the aforesaid acts of the Opposite Part ies. The complainants, are, thus, enti t led to compensation, in the sum of Rs.1,00,000/- , on account of mental agony and physical harassment caused to them, by the Opposite Part ies, and unfair trade practice, adopted by them.

22. ^{No other point, was urged, by} Sh. Sandeep Kumar, Advocate/complainant no.1, in person and the Counsel for the Opposite Part ies.

23. ^{For the}reasons recorded above^{, the}compla^{int is partly}accep^ted, with cos t s . The Oppos i t e Par t i e s a re jo in t ly and severa l ly d i rec ted as under : - i . To deliver physical possession of f lat no.L-201, al lotted in favour of the complainants, complete in al l respects, after obtaining

necessary occupation and completion cert if icates, from the

Competent Authorit ies, to them (complainants) , within a period

of three months, from the date of receipt of a cert if ied copy of

this order, at the original booking price of Rs.38,43,400/- , on

receipt of the remaining sale consideration, as per the terms and

condit ions of al lotment let ter .

i i . To pay compensation/penalty @Rs.5/- square feet of the super

area, per month, for the period of delay i .e . from 01.12.2012,

t i l l the delivery of possession of the f lat , in question, to the complainants.

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i i i . To pay compensation, in the sum of Rs.1 lac, on account of mental agony and physical harassment, caused to the complainants, at their hands.

iv. To pay cost of l i t igation, to the tune of Rs.20,000/- , to the complainants.

v. Compensation granted to the complainants, as mentioned in Clause (i i) , which has fal len due upto 31.10.2013, shall be paid by the Opposite Part ies, within one month, from the date of receipt of a cert if ied copy of this order, fai l ing which, the said amount of compensation, in Clause (i i) shall carry interest @9% P.A., from the date, the same became due, t i l l the delivery of possession of f lat , in question.

vi. Compensation accruing due @Rs.5/- sq. f t . , of the super area, per month, w.e.f . 01.11.2013 onwards, shall be paid by the 10 ^th

of the following month, fai l ing which, the same shall also carry interest @9% P.A., from the date of default , t i l l the delivery of possession of f lat , in question, to the complainants. vii . Compensation granted, in favour of the complainants, as mentioned in Clause (i i i) , to the tune of Rs.1 lac, shall be paid by the Opposite Part ies, within a period of one month, from the date of receipt of a cert if ied copy of the order, to them, fai l ing which this amount shall also carry interest @9% P.A., from the date of f i l ing the complaint , t i l l realization.

24. Cert if ied Copies of this order be sent to the part ies, free of charge.

25. The fi le be consigned to Record Room, after completion Pronounced.

November 12, 2013

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

Sd/-

[DEV RAJ]

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MEMBER

Rg.

[HON'BLE MR. JUSTICE SHAM SUNDER]

PRESIDENT

[HON'ABLE MR. DEV RAJ]

MEMBER

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