FIRST ADDITIONAL BENCH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, CHANDIGARH Consumer Complaint No. 450 of 2019 Date of Institution : 29.05.2019 Date of Reserve : 05.02.2020 Date of Decision : 18.03.2020 Neeraj Sarmai, S/o Shri Jugal Kishore, Resident of Flat -41B, SBP Homes, Ext.-2, Sector-126, Mohali, Punjab-140308. .Complainant Versus SBP Shinestar Pvt. Ltd., Corporate Office: SCO 146-147, 1st Floor, Sector 43-B, Chandigarh -160043, through its Director / Authorized Signatory. Email : info@sbpgroup.in .Opposite party Consumer Complaint under Section 17 of the Consumer Protection Act, 1986. Quorum:- Honble Mr. Justice Paramjeet Singh Dhaliwal, President Mr.Rajinder Kumar Goyal, Member Mrs.Kiran Sibal, Member Present:- For the complainant : Sh.J.N.Bhandari, Advocate For the opposite party : None RAJINDER KUMAR GOYAL, MEMBER The complainant has filed this complaint, under Section 17 of the Consumer Protection Act, 1986 (in short the Act) seeking following directions to the opposite party:
i) to refund the amount of Rs.1,00,000/- along with interest at the rate of 12% per annum from the date of payment till the actual realisation; ii) to pay Rs.1,00,000/- as damages on account of unfair trade practice; Consumer Complaint No.450 of 2019 2 iii) to pay Rs.1,00,000/- as damages on account of mental and physical harassment; iv) to pay Rs.55,000/- as litigation expenses; or
v) any other relief which this Commission may deem fit be granted. Facts of the Complaint
2. Brief facts, as averred in the complaint are that the complainant was approached by the opposite party through its employee with the proposal to buy a flat in a residential project namely SBP Homes Gardenia at Village Chhajumajra, Sector-126, Kharar, SAS Nagar. The opposite party offered best amenities in project i.e. World Class Club House with Swimming Pool, Table Tennis, Community Hall, Mini-Theatre, Wi-fi enabled campus etc. After getting attracted with the advertisement and representation, the complainant agreed to purchase a 3BHK flat in the said project. At the time of booking, it was told to the complainant that the project is RERA approved and having all the approvals from the competent authorities. The basic sale price of the apartment was fixed as Rs.42,84,852/-. At the time of booking, the complainant paid Rs.50,000/- by swapping the card and gave two cheques amounting to Rs.50,000/- and Rs.4,00,000/-. On 07.01.2019, when the complainant visited the office of opposite party to verify the RERA Registration Number then he was asked to deposit another payment first. The complainant later came to know from the website that the opposite party is not RERA approved. On 08.01.2019, the complainant again visited the office of the opposite Consumer Complaint No.450 of 2019 3 party and asked to show the RERA Registration documents but they failed to show. The opposite party also presented a cheque bearing No.000155 dated 08.01.2019 amounting to Rs.50,000/- which was encashed on 10.01.2019. The complainant, thereafter, immediately stopped the payment of another cheque amounting to Rs.4,00,000/-. The complainant vide email dated 18.01.2019 asked the opposite party for refund of his deposited amount. Thereafter, on 24.01.2019, a welcome letter was received by the complainant from opposite party. It was surprised that once the opposite party had already been informed for the refund of amount then why the opposite party sent the welcome letter. On 14.02.2019, the complainant received a demand letter from the opposite party and thereafter on 26.02.2019, the opposite party sent the cancellation letter to the complainant. The complainant vide email dated 08.03.2018 came to know that the opposite party is not registered under RERA. As per Section 3 of RERA Act, 2017, no promoter shall advertise, market, book, sell or offer for sale or invite persons to purchase in any manner any plot, apartment or building. The opposite party has violated the provisions of RERA Act, 2017. Alleging deficiency in service and unfair trade practice on the part of the opposite party, the complainant filed the complaint seeking all the above mentioned reliefs. Defence of the Opposite Party
3. Upon notice opposite party appeared and filed its written statement taking preliminary objections that since no agreement to sell / contract was ever executed between the parties and their Consumer Complaint No.450 of 2019 4 exists no relationship of consumer and service provider as contemplated in the Act. The complainant was required to be adhered to the terms and conditions of the booking form, including entering into the agreement to sell while releasing the balance payments. At the time of booking, the complainant himself stated that he is not end-user of the property and just an investor. The payments so made by the complainant remained to be irregular / delayed/ short, therefore, the opposite party was constrained to issue notice dated 26.02.2019 intimating the complainant about the rejection of his application/booking form. On merits, it is admitted that the complainant booked an apartment and made the payments as referred. The complainant was made aware about the actual and factual position at the time of booking the apartment. Rest all the averments as averred by the complainant in his complaint has been denied and prayed for dismissal of the complaint with costs. Evidence of the Parties
4. To prove his claim, the complainant has filed his affidavit dated 28.05.2019 along with photocopies of documents i.e. application dated 06.01.2019 as Ex.C-1, Bank statement as Ex.C- 2, welcome letter dated 24.01.2019 as Ex.C-3, email as Ex.C-4, Demand letter dated 14.02.2019 as Ex.C-5, cancellation letter dated 26.02.2019 as Ex.C-6, email as Ex.C-7.
5. On the other hand, the opposite parties filed the affidavit of Sh. Amandeep Singla along with copy of application form as Ex.OP-1. Consumer Complaint No.450 of 2019 5 Contentions of the Complainant
6. We have heard the learned counsel for the complainant as none has appeared on behalf of the opposite party at the time of final arguments.
7. Learned counsel for complainant argued that allowed by the assurances and advertisements, the complainant booked one 3BHK apartment with the opposite party in their project SBP Homes. for residential purposes. The complainant paid Rs.50,000/- at the time of booking and gave two cheques amounting to Rs.50,000/- and Rs.4,00,000/-. The complainant further requested the opposite party to show the document wherein the project is approved by RERA. However, the opposite party failed to produce any document wherein project was approved. Thus, the complainant stopped payment of cheque of Rs.4,00,000/-. The complainant paid Rs.1,00,000/- as booking amount against the total sale consideration. Further, when the complainant came to know that the project of the opposite party is not approved by RERA he sought refund. But instead of refunding the amount of the complainant, the opposite party sent a letter for cancellation of unit. This act and conduct of the opposite party amounts to deficiency in service and unfair trade practice, hence, the complainant filed this complaint seeking all the above mentioned reliefs. Consideration of the Contentions
8. We have heard the learned counsel for the complainant and have carefully gone through the record. Consumer Complaint No.450 of 2019 6
9. First of all, we would like to decide the preliminary objection raised by the opposite party that the flat, in question, has been purchased by the complainant for investment purposes, in order to earn profits. In this regard, it is relevant to mention that there is no evidence from the side of the opposite party to prove that the complainant is indulged in sale/purchase of property for commercial purpose and simple assertion in this regard in the reply of the opposite party is not sufficient to prove this fact. Honble National Commission in M/s IREO FIVERIVER PVT. LTD. v. SURINDER KUMAR SINGLA & OTHERS First Appeal No.1358 of 2016, decided on 29.11.2016, while relying upon its earlier decision in KAVITA AHUJA & OTHERS v. SHIPRA ESTATE LTD. & JAI KRISHNA STATE DEVELOPERS PVT. LTD. & OTHERS Consumer Case No.137 of 2010, decided on 12.02.2015, held the complainants as consumers, observing that the appellant failed to show any cogent evidence, which may indicate that the respondents/complainants or any of them has been indulging in sale purchase of the properties or that the complainants or any one of them had booked the subject plots in the development project undertaken by the appellant with the intention to sell the plot on subsequent date for earning profit. In the instant case also, as already said above, there is no evidence led by the opposite party to prove that the complainant indulged in sale/purchase of properties and that he purchased the flat, in question, for further sale or for earning profits. Accordingly, the above said objection of Consumer Complaint No.450 of 2019 7 the opposite party is rejected and the complainant is held to be consumer, under the Act.
10. Now coming to the merits of the case, admittedly, the complainant vide application dated 06.01.2019 booked one apartment for net sale price of Rs.42,84,852/-. Against the total sale consideration, the complainant has paid Rs.1,00,000/- as booking amount vide Ex.C-1 & Ex.C-2 and the same has been admitted by the opposite party in its reply. When the opposite party did not receive any further sale consideration, it cancelled the unit of the complainant vide letter dated 26.02.2019, Ex.C-6. No doubt, the complainant sent emails to the opposite party with regard to furnish RERA Registration Number and further for refund of the booking amount. The complainant has placed a bunch of e-mails exchanged between the complainant P.S. to Member, SG, RERA, Punjab vide Ex.C-7, from where it is evident that the complainant has raised a complaint with RERA authorities also for refund of the booking amount from the builder. In the e-mail dated 18.02.2019, the complainant wrote to RERA, Punjab authorities that I have already attached booking form and other relevant documents when raised online case and further stated to know if anything else is required. Regarding updating of the case RERA vide e-mail dated 27.03.2019 intimated that respondent has appeared on 26.03.2019 and the next date of hearing is fixed on 10.04.2019 for reply. Further vide e-mail dated 12.04.2019, the complainant has stated that I have raised this complaint when the project was not registered and for refund of my amount from the builder. However, Consumer Complaint No.450 of 2019 8 in the present complaint the complainant has not disclosed about the fact whether the said complaint is pending or disposed of?
11. From the above, we are of the view that the complainant is availing two parallel remedies simultaneously for the same issue, which is certainly objectionable and cannot be permitted to the complainant. If it is so, then this conduct of the complainant to open two fronts to challenge this action of the opposite party deserves to be deprecated. It all shows that this conduct of the complainant is nothing but only an abuse of the process of the court, which cannot be permitted by this Commission. Even no explanation has been given about the remedy availed by the complainant before the RERA Authorities.
12. We are fortified with the judgment passed by the Honble National Commission in Beverly Park Maintenance Services Ltd. Vs. Kashmir Fab Styles Pvt. Ltd., (Revision Petition No.2064 of 2012 decided on 13.3.2014), wherein it has been held as under: "7. Now the core question is, whether two parallel proceedings for similar relief can be persuaded before two different forums. Learned counsel for the respondent submitted that section 3, Consumer Protection Act enables complaint to file complaint under the Consumer Protection Act in spite of proceedings initiated before the arbitrator for similar relief. I do not agree with the submission of learned counsel for the respondent because two proceedings for similar relief cannot run simultaneously in two forums. This Commission in I (1994) CPJ 1 (NC), Hanuman Prasad vs. Consumer Complaint No.450 of 2019 9 The New India Assurance Co. Ltd. held that when a case is pending in a court in which full evidence is to be recorded the Forums constituted under the Consumer Protection Act, 1986 should not entertain the complaint with respect to the same cause of action.
8. Respondent is entitled to prove his claim before the arbitrator by leading evidence, whereas proceedings before the State Commission were to be disposed summarily. Once respondent participated in proceedings before the arbitrator for the same relief, proceedings for similar relief could not have been initiated before the State Commission and the State Commission committed error in holding that both proceedings may go simultaneously. The words 'in addition' appearing in S.3 C.P. Act enables complainant to file complaint before Consumer Fora also if not filed before other forum."
13. In the present complaint, the complainant has not even disclosed this issue that he has already filed a complaint before the RERA authorities neither in the pleadings of the complaint nor stated at the time of arguments. By hiding true and material facts of the case it cannot be said that the complainant has approached this Commission with clean hands. Therefore, the complainant does not deserve any kind of relief from this Commission. This kind of complaint should have been dismissed with costs. However, Consumer Complaint No.450 of 2019 10 keeping in view the interest of the consumer, we are simply dismissing the complaint with no costs.
14. In view of the above discussions, we hereby dismiss the complaint being not maintainable.