STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
Consumer Complaint No.929 of 2017 Date of institution : 26.10.2017 Date of decision : 21.03.2018
Rajneesh Kumari W/o Sh. Kewal Krishan, R/o Ward No.7, Canal Road, Sujanpur, District Pathanakot.
….Complainant
Versus
Pathankot Improvement Trust, Pathankot, through its Chairman or any other person, competent to receive summons on its behalf. .…Opposite Party
Consumer Complaint under Section 17 of the Consumer Protection Act, 1986. Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President Mrs. Kiran Sibal, Member.
Present:-
For the complainant : Sh. Akhilesh Vyas, Advocate For the opposite party : Ms. Kavita Arora, Advocate.
JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT :
Facts of the Complaint
The complainant has filed this complaint, under Section 17 of the Consumer Protection Act, 1986, against the opposite party, seeking following direction to it:
i) to refund the entire amount of ₹20,75,000/- paid to it by the complainant;
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ii) to pay interest at the rate of 18% per annum from the date of deposit of the above said amount till the same is paid in full and final;
iii) to pay compensation of ₹10,00,000/- on account of unfair trade practice adopted by it, which caused mental agony and harassment to the complainant; and
iv) to pay cost of litigation.
v) It was also prayed that any other order/direction, as may be deemed fit in the facts and circumstances of the case, be also issued.
Brief facts, as set out in the complaint, are that the complainant is an allottee of M.I.G. Flat No.304-B, Block-B, Third Floor, under development scheme known as 'Timber Market Truck Stand' (in short,
"T.M.T.S."), vide allotment letter dated 13.01.2011 issued by the opposite party. She purchased the said flat for her own residence. She deposited ₹5,18,750/-, as earnest money with the opposite party, being 1/4thof the total cost of the said flat i.e. ₹20,75,000/-. As per the allotment letter, the allottee was to pay the cost of the flat within a period of 2-1/2 years and after receiving the cost of the flat, the opposite party was to deliver the possession of the flat, in question, till June, 2012. She further deposited a sum of ₹2,08,000/-/- with the opposite party, vide receipt dated 09.02.2011. The complainant already paid the cost of the flat to the opposite party within the stipulated period, but the opposite party failed to deliver possession of the flat within the stipulated period, on one pretext or the other. Thus,
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the complainant is entitled to compensation for delay in delivery of possession, in the shape of interest at the rate of 18% on the cost of the flat. She is also entitled to the rent paid during the period, for which she was to be given possession by the opposite party. The complainant visited the office of the opposite party many times, seeking possession of the flat, in question, but to no effect. Due to deficient act of the opposite party, the complainant suffered mental agony and harassment. She also suffered monetary loss, as she was paying interest on the loan obtained from the Bank for making payment of the price of the flat, in question, to the opposite party. The complaint is within limitation, as firstly the complainant filed complaint on 09.01.2015, which was withdrawn on 12.08.2015, with liberty to file a fresh one on the same cause of action. Hence, the present complaint.
Defence of the Opposite Party
2. Upon notice, the opposite party appeared and filed written reply, raising preliminary objections that the complainant cannot avail the remedy to file this complaint as it is against the principle of resjudicata, as he had earlier filed CC No.40 of 2015 before District Forum, Gurdaspur on 09.01.2015, which was withdrawn after 8 months, with liberty to file fresh one on the same cause of action. The present complaint has been filed after a period of 2 years therefrom and is liable to be dismissed on this ground alone. The complainant has no right to file the present complaint before this Commission. The terms and conditions for the lucky draw at the time of advertisement were given alongwith the brochure and as per Condition No.22, in case
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of any dispute between the parties, the Court at Pathankot or Civil Court shall have the jurisdiction to adjudicate. The complainant has no cause of action to file the present complaint. She was allotted M.I.G. flat No.304-B, Block A, 3rd floor under the development scheme of Timber Market Truck Stand (Jalandhar Jammu bypass road). Draw was conducted on 19.11.2010 and allotment letter was issued by the office of the Trust, bearing reference no.104/PIT dated 13.01.2011, containing all the terms and conditions thereof. The complainant is not entitled to refund of price of the flat, as per rules of allotment i.e. The Punjab Town Improvement (Utilization of Land and Allotments of Plots) Rules 1983. Refund of earnest money can only be made, if the applicant remained unsuccessful in the draw of lots. As per Condition No.8 of the allotment letter dated 13.01.2011, the allottee shall be entitled to get the possession of the MIG flat from the Trust, only after complying with all the terms and conditions thereof and after making payment of all the instalments and after filing all the requisite documents, as required by the Trust. As per Condition No.4 of the allotment letter, the allottee of the flat was to execute the Agreement to Sell within a period of 30 days from the date of issuance of the allotment letter dated 13.01.2011, by bringing a stamp paper worth ₹500/-, along with two witnesses in the office of the Trust. However, the complainant never approached opposite party-Trust for getting the Agreement to Sell executed within the stipulated period of 30 days from the date of issuance of allotment letter and has filed this complaint for refund of the deposited money to her. The possession
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can be got, only after executing the Agreement to Sell. As per conditions No.5 and 6 of the allotment letter, the construction of MIG flat was to be completed within a period of five years. In this case, the allotment letter was issued to complainant on 13.01.2011 and she was not entitled to the possession of the flat in June 2013. As per condition No.12 of the allotment letter, the allottee, before taking the possession of the flat, was required to be a member of the Apartment Cooperative House Building Society Limited and was required to deposit the requisite fee of ₹25,000/- towards the common fund for providing various services, but complainant failed to comply with this condition. It is further averred that Pathankot Improvement Trust has already carried out the requisite development work in the entire scheme area, by providing all the basic amenities in the whole of the scheme area and has spent a lot of finances for the development works in the scheme area. The possession of the flat, in question, was offered to the complainant, vide letter dated 30.11.2017. It was admitted that the complainant has paid all the instalments and the possession has also been delivered to her, provided she complies with all the terms and conditions of the allotment letter. There is no deficiency in service on its part. On merits, allotment of the flat, in question, and payment of entire sale consideration by the complainant was admitted. Other similar pleas, as raised in preliminary objections, were reiterated and denying all other allegations of the complaint, dismissal thereof was prayed.
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Evidence of the Parties
3. To prove her claim, the complainant tendered in evidence her own affidavit as Ex.C-A, along with documents Ex.C-1 to Ex.C-10.
4. The opposite party tendered in its evidence affidavit of Sh. Anurag Sharma, Junior Engineer, as Ex.OP-A, along with documents Ex.OP-1 to Ex.OP-5.
Contentions of the Parties
5. We have heard learned counsel for the parties and have gone through the record carefully.
6. Learned counsel for the complainant vehemently contended that the opposite party failed to deliver possession of the flat, in question, to the complainant within the stipulated period, despite receipt of entire sale consideration of the flat from her. Even it failed to provide the agreed basic amenities in the scheme, as per the brochure. The complainant took loan from the Bank for making payment of the price of the flat to the opposite party, but due to delay in delivery of possession, she had to pay extra interest on the loan obtained from the Bank. The act and conduct of the opposite party amounted to deficiency in service, which caused mental agony and harassment to her. As such, the complainant is entitled to all the reliefs, as prayed for in the complaint.
7. Per contra, learned counsel for the opposite party vehemently contended that the opposite party-Trust has already carried out the requisite development work in the entire scheme area, by providing all the basic amenities in the whole of the scheme area and has spent a lot of finances for the development works in the
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scheme area. The possession of the flat, in question, has been offered to the complainant, vide letter dated 30.11.2017, subject to compliance of all the terms and conditions of the allotment letter. As per Conditions No.5 and 6 of the allotment letter dated 13.01.2011, the construction of MIG flat was to be completed within a period of five years. In this case, the allotment letter was issued to complainant on 13.01.2011 and the five years were completed in January 2016. She was not entitled to the possession of the flat in June 2013. There is no deficiency in service on the part of the opposite party and due to non-compliance of the terms and conditions of the allotment letter, the complainant is not entitled to any relief. The complainant also failed to comply with Condition No.12 of the allotment letter, as per which the allottee before taking the possession of the flat was required to be a member of the Apartment Cooperative House Building Society Limited and was required to deposit the requisite fee of ₹25,000/- towards the common fund for providing various services. It was further contended that as per Condition no.22 of the Brochure, Ex.OP-1, in case of any dispute, the Court at Panthankot will have the jurisdiction and, as such, this matter is outside the purview of jurisdiction of this Commission. The complaint is liable to be dismissed.
Consideration of Contentions
8. We have given our thoughtful consideration to the respective contentions of the learned counsel for the parties.
9. So far as objection of the opposite party that as per Condition no.22 of the Brochure, Ex.OP-1, in case of any dispute, the
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Court at Pathankot only will have the jurisdiction, is concerned, it is pertinent to note that the value of the flat, in question, is more than ₹20,00,000/-. Hence this Commission is competent to try the complaint, as per the Act. Moreover, jurisdiction is conferred by the Statute and not by mutual arrangement by parties. Still further, Hon'ble National Commission (Polymech Plast Machines Ltd. and Anr. v. Apple Plast Pvt. Ltd.) IV (2006) CPJ 172(NC) held that any such clause restricting the jurisdiction to one of the District Forums/State Commissions is contrary to Section 11(2) of the Consumer Protection Act, 1986. Accordingly, the above said objection raised by the opposite party is rejected, holding that this Commission has territorial jurisdiction to entertain and decide this complaint.
10. So far as the objection of the opposite party that the complainant cannot file this complaint on the same cause of action, as he earlier filed CC No.40 of 2015 before District Forum, Gurdaspur and it is against the principle of resjudicata, is concerned, it is relevant to mention that the said complaint was dismissed as withdrawn due to technical defects, vide order dated 12.08.2015, Ex.C-9, with liberty to file fresh one on the same cause of action. Since specific liberty was granted by the District Forum to file fresh complaint and since the opposite party itself failed to complete the project, as to deliver the possession of the flat, in question, to the complainant till today despite the fact that entire sale consideration has been received by it, thus, it cannot be said that the complaint is time barred or it is against the principle of resjudicata. Moreover, the proceedings under the Act are
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summary in nature, so principal of resjudicata does not apply, as has been held by the Hon'ble Supreme Court in case Inder Singh And Another v. The Financial Commissioner, Punjab and Others 1997
(1) PLJ 52. Relevant Para No 3 of the above said judgment reads as under:
"3. Shri Ujagar Singh, learned senior counsel for the appellants contended that the view taken by the High Court is not correct in law. Since the proceedings before the authorities are of summary nature, the doctrine of res judicata has no application. The Act does not prescribe any principle of res judicata as such. The proceedings before the authorities are of summary nature. It would not be correct to apply the principle of res judicata. We find force in the contention. It is not in dispute that the order passed by the authorities is without any elaborate trial like in a suit but in a summary manner. It is well settled law that the doctrine of res judicata envisaged in Section 11 of C.P.C. has no application to summary proceedings unless the statute expressly applies to such orders. The authorities are not civil Court nor the petition is plaint. No issues are framed nor tried as a civil suit. Under these circumstances, the Division Bench of the High Court was clearly in error to conclude that the earlier proceedings operate as res judicata."
11. Hon'ble Punjab & Haryana High Court in case GRAM PANCHAYAT SUREWALA v. COMMISSIONER, FEROZEPUR AND
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OTHERS 1998 (1) PLJ 240 also followed the law laid down by the Hon'ble Supreme Court in Inder Singh's case (supra).
12. In view of the law laid down by the Hon'ble Supreme Court and followed by Hon'ble Punjab & Haryana High Court in the above noted authorities, the above said objection raised the opposite party is also repelled.
13. Now, coming to merits of the case, admittedly, the flat, in question, was allotted in favour of the complainant, vide letter dated 13.01.2011, Ex.C-2, in which the price of the flat was mentioned as ₹20,75,000/-. The complainant paid the total sum of ₹20,82,888/- to the opposite party towards the price of the flat, in question, vide receipts/cheques Ex.C-3 to Ex.C-7. The opposite party has also admitted the fact that the complainant has paid all the instalments in Para No.7 of its reply on merits. The main grievance of complainant in this case is that despite payment of entire sale consideration amount by her, she has not been delivered the possession by the opposite party. The main emphasis of opposite party is on Clause-5 of the allotment letter Ex.C-2, as per which the installments of MIG Flat will be recovered in 2½ years and thereafter the allottee can recover the possession from the Trust within 2½ years, with all facilities. We find that generally the period of 2-3 years is fixed for delivery of possession, whereas the period of five years is too long. No doubt, the period of five years was fixed for delivery of possession of the flat, but the word 'thereafter' leads to the construction that on clearance of the instalments only, the possession was to be delivered within above said
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period of 2½ years. We, thus, reject the plea of the opposite party that the period fixed for delivery of possession was five years and not 2½ years. We hold that the period fixed for delivery of possession is 2½ years from the date of allotment letter dated 13.01.2011 and this period is generally fixed for delivery of possession of the allotted apartment/flat. The complainant has cleared the instalments, vide receipts/cheques Ex.C-3 to Ex.C-7, within the above prescribed period and, hence, she is entitled to delivery of possession thereof. However, the opposite party has not completed the project and it is unable to place completion certificate on record, as mandated by Section 14 of Punjab Apartment and Property Regulation Act, 1995 (in short,
"PAPRA"). The counsel for opposite party mainly relied upon letter Ex.OP-4 dated 30.11.2017 posted on 04.12.2017. When the period fixed for delivery of possession is 2½ years counting from 13.01.2011, hence this letter dated 30.11.2017, Ex.OP-4, without any occupancy certificate, as mandated by Section 14 of PAPRA, would not exonerate the opposite party from its obligations. It utilized the hard earned money of the complainant, but failed to perform its part of the contract to deliver the possession to her within agreed time. It is not the case of the opposite party that complainant committed default in making the installments. The opposite party represented in the brochure to provide facilities, like; flooring, doors & windows, toilets, kitchen, internal finishes, external finishes and electrical works. As per photographs Ex.C-10 (colly.), the project is still incomplete. The opposite party is, thus, deficient in service in not delivering possession of the flat, in
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question, to the complainant within reasonable and agreed time, as per allotment letter Ex.C-2.
14. No doubt, as per Clause 12 of the allotment letter Ex.C-2, the allottee was required to become a member of Apartment Cooperative-House Building Society Limited before receiving the possession. However, had the opposite party completed the project and delivered the possession of the flat to the complainant within the stipulated period, then Clause 12 of allotment letter would have been applicable in this case. However, it is not so in this case. The allottee cannot be expected to wait for an indefinite period for delivery of possession to her. Her hard earned money is being utilized by opposite party, without performing its corresponding obligation. There are no facilities and amenities, as represented by opposite party in the brochure, provided in the project. Thus, the opposite party is also found indulging in unfair trade practice. The complainant took loan and paid the amounts, by getting finance, to opposite party and this fact can also not be ignored, while calculating the depth of deficiency in service on the part of the opposite party in not delivering possession of the flat, in question, to the complainant within the agreed period. In these circumstances, the complainant is entitled to the amount deposited by her, along with interest and compensation.
15. No doubt, the complainant has prayed for refund of ₹20,75,000/-, but from perusal of receipts/cheques Ex.C-3 to Ex.C-7, it is clear that a total sum of ₹20,82,888/- stands deposited by the
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complainant with the opposite party towards the price of the flat, in question.
16. In view of our above discussion, the complaint is allowed ad following directions are issued to the opposite party:
i) to refund the deposited amount of ₹20,82,888/-, along with interest at the rate of 12% per annum from the respective dates of deposit till realization, as per Rule 17 of PAPRA;
ii) to pay compensation of ₹1,50,000/-, on account of mental agony and harassment suffered by the complainant as well as litigation expenses.
17. The order shall be complied with within 30 days of the receipt of copy of the order.
(JUSTICE PARAMJEET SINGH DHALIWAL)
PRESIDENT
(MRS. KIRAN SIBAL)
MEMBER
March 21, 2018.
(Gurmeet S)