Rajesh Kumar v. Motia Construction Ltd.

FIRST ADDITIONAL BENCH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH. Consumer Complaint No.674 of 2017 Date of Institution: 09.08.2017 Order reserved on: 30.04.2018 Date of Decision : 02.05.2018 Rajesh Kumar aged 45 years (NRI) son of Chaman Lal R/o 17/102, Royal Estate, Zirakpur-Ambala Road, Zirakpur, Tehsil Dera Bassi, District Mohali now residing at Atlana City Georgia, USA through attorney Sh. Chaman Lal, Advocate R/o 17/102, Royal Estate, Zirakpur-Ambala Road, Zirakpur, Tehsil Dera Bassi, District Mohali. ..Complainant Versus

1. Motia Construction Ltd., through its Director/Chairman Chandigarh-Delhi Highway, NAC Zirakpur, District Mohali.

2. The Royale Estate Apartments owners Association through its President/Secretary, Royal Estate Zirakpur-Ambala Road, Zirakpur, Tehsil Dera Bassi, District Mohali. .....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. Ashok K. Sharma, Advocate For opposite party no.1 : None For opposite party no.2 : Sh. Gaurav Singla, 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 he approached OP no.1 for purchase of flat at tower no.17 in the Royale Estate Complex, Zirakpur. The complaint is being filed through his attorney, who is well conversant with the facts of the case. OP no.1 demanded Consumer Complaint No.674 of 2017 sum of Rs.28,38,950/- (including Rs.1,50,000/- for covered car parking, power back-up (5KW) and club membership), as total price of the flat, which was deposited by complainant with OPs. It is further averred that apartment buyers agreement was executed on 19.11.2007 between complainant and OP no.1. OP no.1 issued allotment letter dated 19.11.2007 to complainant. The parties agreed for 24% by way of interest per annum, if the installments were delayed or possession was delayed by OP no.1. The possession of the flat was to be delivered on or before 19.05.2010 by OP no.1 to complainant, but OP no.1 gave the possession on 27.12.2011 without any power backup, without covered car parking and without any facility of club to him. The complainant wrote letter to OP no.1 in July 2015, for providing the above facilities. In response thereto, OP no.1 wrote letter to OP no.2 on 25.07.2015 for providing the above facilities to Rajesh Kumar complainant at the earliest, but to no effect. The complainant has, thus, prayed that OPs be directed to refund the above amount of Rs.1,50,000/- alongwith interest @24% per annum from 19.11.2007 till actual realization; further to pay Rs.5,00,000/- as compensation for mental harassment; and Rs.1,00,000/- as cost of litigation.

2. Upon notice, OP no.1 appeared and filed written reply by raising preliminary objections that complaint is without cause of action. The matter is not cognizable by Consumer Forum, as there is no consumer dispute between the parties. The complaint is, thus, not maintainable. The complaint has been filed on wrong basis by Consumer Complaint No.674 of 2017 complainant. After delivery of possession of flats to different allottees, the maintenance thereof was taken over by Apartment owners association OP no.2. The possession of allotted flat was delivered to the complainant on 27.12.2011 and he never made any complaint regarding the power backup. In the year 2015, a complaint was made before SDM Derabassi regarding power back up by some allottees (the complainant was one of them). The SDM passed the order in this regard and thereafter complainant never made any complainant to OP nos.1 and 2 or to any other authority. The complaint is alleged to be barred by time and merit dismissal under Section 24-A of C.P. Act, because the possession was delivered to complainant of above flat on 27.12.2011 and complaint has been filed after six years period therefrom. OP no.1 also controverted the averments of complainant even on merits on the above referred grounds. OP no.1 has prayed for dismissal of the complaint.

3. OP no.2 filed its separate written reply by raising preliminary objections that the dispute is between the builder OP no.1 and complainant and answering OP has nothing to do with the inter-se dispute of them. OP no.2 was not the party to the buyers agreement. OP no.2 had filed the appropriate proceedings before the authorities regarding the shortcomings and incomplete project, against OP no.1 and the same has been pending before GMADA authorities. OP no.2 controverted the other averments of complainant. OP no.2 prayed for dismissal of the complaint by Consumer Complaint No.674 of 2017 denying any deficiency in service and unfair trade practice on its part.

4. The complainant tendered in evidence affidavit of his attorney holder Chaman Lal Ex.C-A alongwith copies of documents Ex.C-1 to Ex.C-7 and closed the evidence. As against it, OP no.2 tendered in evidence affidavit of Harish Lamba, President of OP no.2 Ex.OP2/A alongwith documents Ex.R2/1 and Ex.R2/2 and closed the evidence. OP no.1 tendered in evidence affidavit of Pritam Chaudhary authorized signatory Ex.OP1/A alongwith copies of documents Ex.OP1/1 to Ex.OP1/7 and closed the evidence.

5. We have heard the learned counsel for the parties and have also examined the record of the case. The complainant raised grievance that OP no.1 received the additional amount of Rs.1,50,000/- from him for providing power back up, covered cark parking and for club membership, but these facilities have not been provided to him nor OP no.1 has refunded the amount of Rs.1,50,000/- received from him in this regard. The complainant has filed this complaint through his power of attorney holder and attorney holder entered into witness box on his behalf and tendered in evidence his affidavit Ex.C-A on the record. Our attention has been drawn to the copy of power of attorney executed by complainant in favour of his father Chaman Lal to pursue the case on his behalf vide Ex.C-1. Apartment buyers agreement is Ex.C-2 executed on 19.11.2007. Clause 2 of this agreement lays down that price of the flat was fixed as Rs.28,38,950/- (including Rs.1,50,000/- for power Consumer Complaint No.674 of 2017 backup, covered cark parking and club membership). Ex.C-3 is the copy of allotment letter dated 19.11.2007 issued to complainant by OP no.1 of the flat. Ex.C-4 are the copies of receipts (Colly) for payments made by complainant to OP no.1. Ex.C-5 is the copy of possession certificate in the name of complainant. Ex.C-6 is the request letter dated July 2015 from complainant to OP no.1 for providing the above facilities. Ex.C-7 is the copy of letter from OP no.1 to OP no.2 regarding giving the power back up to complainant. This document has made it clear that the name of Rajesh Kumar complainant of flat no.102, tower no.17 be included in the list, who is entitled to power back up connection. Contrary evidence was led on record by OP no.1, which has also been carefully weighed by us consisting of affidavit of Pritam Chaudhary authorized signatory Ex.OP1/A on the record. Ex.OP1/1 is copy of letter dated 25.07.2015 from OP no.1 to OP no.2 regarding giving the power back up facility to complainant. Ex.OP1/3 is the copy of letter from SDM to OP no.2 regarding issuance of power backup to flat no.303, tower no.17 of Motia Royale Estate. Ex.OP1/4 is the copy of possession letter and Ex.OP1/5 is the copy of undertaking of complainant dated 27.12.2011. Ex.OP1/6 is the copy of affidavit of complainant to the effect that he checked the construction quality, fittings/furnishing and layout scheme of the flat and same found correct. Ex.OP2/A is the affidavit of Harish Lamba President of OP No.2 in this case. He testified that possession of the flat was taken by complainant on Consumer Complaint No.674 of 2017 27.12.2011 and present complaint has been filed on 19.10.2016. Ex.R2/2 is the copy of list of allottees of club membership.

6. From careful evaluation of above referred evidence on the record and hearing the respective submissions of counsel for parties, we have come to this conclusion that OP no.1 received the additional amount of Rs.1,50,000/- from complainant for providing facility of club membership, covered car parking and power backup. These facilities have not been provided by OP no.1 to the complainant, despite receipt of consideration from him therefor. OP no.1 is, thus, guilty of unfair trade practice in this case in withholding these facilities despite receipt of money from the complainant for them. OP no.1 is deficient in service on this point, as it has utilized the hard earned money of Rs.1,50,000/- of complainant without providing the above facilities, as per apartment buyers agreement on the record. Consequently, this finding is returned by us that OP no.1 is deficient in service and indulging in unfair trade practice to complainant.

7. The next forceful submission raised by counsel for OPs before us is that complaint is barred by time. It is for the complainant to prove that the complaint is within time. On this point, counsel for the OPs argued that complainant originally filed the complaint before the District Forum Mohali on 26.09.2016, vide complaint no.636 of 2016. The District Forum Mohali returned the complaint on account of lack of pecuniary jurisdiction and thereafter the the complaint was filed before this Commission in continuation thereof. Even if, it is Consumer Complaint No.674 of 2017 taken that complaint was filed in this case on 26.09.2016 vide complaint no.636 of 2016 for not providing above facilities, even then the point for adjudication is whether the complaint is within time or not. The complainant received the possession of the allotted flat from OPs on 27.12.2011, vide possession letter Ex.OP1/4 dated 27.12.2011. Ex.OP1/6 is the copy of affidavit dated 27.12.2011 of complainant to the effect that he has no grievance against OP no.1 nor has any claim against the OP company. He took over the possession of flat no.102, tower no.17 in Motiaz Royale Estate Zirakpur on 27.12.2011. The cause of action has, thus, commenced in this case on 27.12.2011. The complaint has been filed before the District Forum on 26.09.2016, vide complaint no.636 of 2016. The complaint was not filed within two years period from taking over of possession of the allotted flat by complainant i.e. on 28.12.2011. The complaint is barred by time. The complainant has not filed any application for condonation of delay in this case either. Consequently, we have come to this conclusion that complaint has not been filed by complainant within time and is barred by time, as the cause of action arose in this case from the date of delivery of possession of allotted flat on 27.12.2011, when complainant found these deficiencies. This finding is returned against complainant by us holding that once the cause of action started from the date of delivery of flat, it cannot be stopped by writing letter by complainant to OPs for refund of the amount. Consumer Complaint No.674 of 2017

8. As a result of our above discussion, the compliant is held to be barred by time and is ordered to be dismissed accordingly.

9. Arguments in this complaint were heard on 30.04.2018 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 May 02, 2018. (MM)