National Consumer Disputes Redressal Commission New Delhi s2

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 2359 OF 2012 (Against the order dated 11.5.2012 in Appeal No. 30 of 2010 of the Goa State Consumer Disputes Redressal Commission, Panaji )

1. M/s Milroc Development Co. A partnership Firm duly constituted Under the Indian Partnership Act Having its office at 501, Milroc Lar Menzes, Swami Vivekanand Road, Panaji, Goa

2. Mr. Kantipudi Kulasekhar S/o Mr. K. Chandramohan Partner of M/s Milroc Development Company R/o Kasturi, Plot No. E-11, La Citadel, Dona Paula, Goa

3. Mr. Kamlesh Shantilal Jhaveri S/o S.G. Jhaveri, Partner of M/s Milroc Development Company Having its office at 501, Milroc Lar Menzes, Swami Vivekanand Road, Panaji, Goa.

4. Mrs. Shobha Kamlesh Jhaveri W/o Kamlesh Shantilal Jhaveri Partner of M/s Milroc Development Company Having its office at 501, Milroc Lar Menzes, Swami Vivekanand Road, Panaji, Goa.

5. Mr. Allaparthi Durga Prasad S/o Allaparthi Gopalkrishnamurthy, Partner of M/s Milroc Development Company Having its office at 501, Milroc Lar Menzes, Swami Vivekanand Road, Panaji, Goa...... Petitioner (s)

Versus.

Mrs. Antonieta Ribeiro De Souza W/o Jose Feliciano de Souza R/o Flat No. G-1/B-31, Rabindar Retreat, Rabinder Ilhas, Goa …….Respondent (s)

BEFORE: HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER HON’BLE MR. VINAY KUMAR, MEMBER

For the Petitioner : Mr. Kaustubh Sinha, Advocate with Mr. Dewat Singh, Advocate For the Respondent : NEMO

Pronounced on 1 st November, 2012

JUSTICE J. M. MALIK, PRESIDING MEMBER

1. This revision petition has been filed by M/s Milroc Development Co. and its partners, Mr. Kantipudi Kulasekhar, Mr. Kamlesh Shantilal Jhaveri, Mrs. ShobhaKamlesh Jhaveri and Mr. Allaparthi Durga Prasad. The complainant, Mrs. Antonieta Ribeiro de Souza and the petitioners/opposite parties entered into an agreement wherein the complainant agreed to purchase flat in the apartment project developed by the opposite parties for construction cum sale of a flat having a built up area of 135 sq. mt. The possession of the flat was given to the complainant on 8.7.1998. The sale deed was executed and registered by the parties on 29.3.2006. 2. The complainant filed a consumer complaint before the District Forum, North Goa at Porvorim alleging deficiency in service coupled with defective construction and seeking certain directions. In the complaint, it is averred that brochure described the project as a township consisting of 350 apartments and an exclusive shopping centre, a club house as well as community hall. The brochure further stated that the complex would be walled on four sides, with gates, entry way, manned by security personal round the clock. Again, it would have a shopping complex enabling the purchasers to live a self contained existence within the Retreat by providing daily amenities and services, such as provision stores, bank, beauty parlour, shopping arcade and restaurants. The brochure also promised a Club House with well-equipped health club. Consequently, the complainant booked one flat for which she paid Rs.9,47,500/- and one time maintenance costs of Rs.39,813/-. However, in the sale deed, the amenities mentioned above found no place. It is further averred that the quality of the construction is very poor. It transpired that there was lot of absorption of water on all the outer walls of the apartment, cracks had developed practically on all inner walls and there was dampness on the walls resulting into formation of fungus, particularly, in the bedroom walls. This dampness attracted and provided an ideal media for insects and other microscopic life. Those affected the skin of the complainant and her husband. Again, there was tremendous absorption of water on the roof of the toilet of the master bedroom. Dark brown and gray patches developed all over the roof of the toilet of the master bedroom resulting in the formation of fungus and foul smell pointing to corrosion of the street wires in the slab above the bedroom. It affected the health of the complainant and her husband. They were medically treated. Again, there was seepage of water even through the beams and walls, which had affected the crockery of the complainant. Moreover, the glazed tiles in the bathroom are of poor quality as the tiles of the master bedroom had developed cracks and holes and the holes need replacement. The granite stone on the platform of the kitchen is full of holes and beautifully filled with cement of the same colour, which could not be seen at the time of taking the possession. After sometime, the cement started peeling off and the holes have started showing clearly indicating that second quality material was used. 3. Shri S. N. Bhobe, an Architect visited the flat on 3.10.2003 and gave its report ext. ‘E’. The Architect has opined that the dark patches on the walls show that there is seepage of water through the beams, thereby the steel has started corroding thereby endangering the entire structure of the building. As per agreement, for Construction-cum-Sale, each unit was to be provided with underground sump with an electric pump and an overhead tank. The same was not provided. On the other hand, the petitioners had constructed the huge massive tank which is connected to the water supply. In addition, the petitioners have dug 2/3 Bore Wells and they pump water from the bore wells also into the tank, which mixes with the water from the Public Works System. From this tank, water is supplied to all the apartments. For quite some time, the water was being supplied to the apartments, including the apartment of the complainant. The people are not getting clean water. It was prayed that the opposite parties be directed to execute the deed of rectification so as to incorporate all the clauses of the agreement of Construction cum Sale, which were not incorporated therein and which have been in the agreement for Construction cum Sale dated 31.3.1997. The opposite parties be further directed to rectify the problem of dumpness in the outer walls and inner walls and ceiling of the apartment including the roof of the master bedroom and to repair all cracks in the walls and to replace the glazed tiles which have cracked both in the kitchen as well as in the bathroom, to provide clean and potable water to the complainant’s apartment. Besides this, compensation in the sum of Rs.1 lakh be granted in favour of the complainant. 4. The opposite parties contested this case. In the written statement, the opposite parties submitted that the complainant is not a consumer. No negligence on their part has been spelt out. The case for rectification is not maintainable. The case is barred by time. The relief for mandatory injunction or specific performance cannot be granted and all the pleas have been denied. 5. The District Forum partly allowed the complaint. It directed the opposite parties to rectify the problems of dampness in the outer walls and inner walls and ceiling of the apartment including the roof of the master bedroom; to repair all cracks in the walls; to replace the glazed tiles which have cracks both in the kitchen as well as in the bathroom and to provide clean and potable water to the complainant’s apartment. It also granted compensation in the sum of Rs.50,000/- towards inconvenience and discomfort caused to her. 6. The State Commission dismissed the appeal filed by the opposite parties. 7. The revision petition has been filed by the opposite parties. Argument advanced by the learned counsel for the petitioners has two prongs. He vehemently argued that the present case is barred by time. He places reliance on two authorities reported in Raja Ram Maize Products Etc. etc. vs. Industrial Court of M.P. and Ors. AIR 2001 SC 1676 and Annu Enterprises India vs. Haryana Urban Development Authority & Ors. I(2012) CPJ 552 (NC). 8. The facts of these authorities are different. This is a case of continuing cause of action. The main document in this context has been placed on record, which is the agreement entered into between the two parties. Last portion of clause 7 reads as follows:- “Upon possession any cracks to the plaster/dampness in external plaster walls shall not be considered as defective work unless the architect of the Vendor opines otherwise.”

7. The petitioners-opposite parties also took an expert opinion from Mr. Jayant V. Pai Vernekar, who inspected the spot and gave the following report dated 14.10.2003. “ This has reference to our visit to the above flat with you to assess the Spot/patches on the toilet ceilings of the above flat on 11/10/2003. We checked the ceilings of both the bathrooms of this flat and found that the ceiling were thoroughly dry everywhere. We noticed some spots and patches on the ceiling of one toilet and the beam side of the other toilet. These were earlier leakages spots, which were found to be completely dried up during the inspection. The whole ceiling had old fungus marks created due to condensation of atmospheric moisture on the cold surface of the ceiling. You mentioned that a few months back the nahani traps in the upper toilets were grouted with cement water and waterproofing compound to plug any crevices and avoid the possibility of any moisture in the toilet below. This has stopped the ingress of moisture that was earlier noticed causing marks on the ceiling as mentioned above. We also noticed condensation marks on the wall between the bedroom and the living room. These are caused due to the cool air from the air conditioner in the bedroom, mainly when atmospheric humidity is high. These marks have nothing to do with the toilet of the upper flat. In case you need any further assistance in the matter, please do get in touch. Thanking you,”

8. The report of this expert engaged by the petitioners themselves reveals so many defects. It is surprising to note that the walls are incapable to tolerate the cool air coming from the Air conditioner. It shows the poor quality of the material used there. The facts of this case speak for themselves. The allegations leveled against the petitioner stand proved. 9. The petitioners themselves admit that the development of cracks of tiles in bathroom was due to wear and tear and rough handling by the complainant. It was observed that the granite stone placed in the kitchen was in good shape and had no blemishes. It was also communicated that filling of holes with cement is only imaginary and cannot be technically possible. It was communicated that if cement is filled, the holes cannot be lost even one month as it is a natural stone. This cannot be said to lucid explanation. 10. The complainant has also produced the report of Architect, Mr. S. N. Bhobe, which goes to support the case of the complainant. The case of the complainants is supported by adequate evidence discussed above. 11. It is also noteworthy that all the terms and conditions mentioned in the agreement were not included in the sale deed. 12. The revision petition is without merit and the same is therefore dismissed.

..…………Sd/-………..……… (J.M. MALIK, J.) PRESIDING MEMBER

……………Sd/-….…………… (VINAY KUMAR) MEMBER Naresh/reserved NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 2920 OF 2011 (From the order dated 5.4.2011 in Appeal No.1075/06 of the Haryana State Consumer Disputes Redressal Commission, Panchkula)

Sukhbir Singh S/o Sh. Ami Chand R/o House No.1922, Sector – 8 Faridabad (Haryana)

… Petitioner/Complainant

Versus

Haryana Urban Development Authority, Faridabad, Through its Estate Officer, HUDA, Faridabad. … Respondent/Opposite party

BEFORE

HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

For the Petitioner : Mr. Manoj Kumar Sood, Advocate

PRONOUNCED ON 2 nd November, 2012

O R D E R PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

This revision petition has been filed against the order dated 05.04.2011 passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula (in short, ‘the State Commission’) in Appeal No. 1075/06 – HUDA Vs. Sukhbir Singh by which while accepting appeal order dated 20.2.2006 passed by District Forum was set aside and complaint was dismissed.

2. Brief facts of the case are that petitioner/complainant was allotted plot No.1607-P, Sector 65, Faridabad by the opposite party vide allotment letter dated 29.10.2001. Complainant deposited Rs.27,110/- i.e. 10% of the tentative price of the plot with application on 29.12.2000 and thereafter deposited Rs.47,441/- i.e. 15% of the tentative price of the plot on 28.11.2001. The remaining price of the plot was to be paid in instalments. As the opposite party failed to develop the area and deliver possession of the plot within the stipulated period to the complainant, the complainant moved application on 17.9.2002 to the opposite party for surrender of plot with prayer to refund the entire deposited amount. The opposite party accepted prayer of complainant, cancelled allotment of the plot and refunded Rs.24,504/- vide letter dated 10.3.2003 after deducting 10% of the total consideration, as per HUDA policy. After accepting refund, complainant filed complaint before the District Forum alleging that the plot was surrendered under compelling circumstances and requested that original plot or an alternate plot of the same size in the same sector may be allotted to him. Opposite party filed written statement and submitted that as the complainant had surrendered the plot voluntarily and requested refund, complainant is no more a consumer, hence, prayed for dismissal of the complaint. District Forum after hearing both the parties allowed the complaint and directed opposite party to reallot the same plot or alternate plot of the same price along with interest etc. On appeal, learned State Commission vide impugned order while allowing appeal dismissed complaint against which this revision petition has been filed.

3. Heard learned counsel for the petitioner at admission stage and perused record.

4. Learned counsel for the petitioner submitted that learned State Commission passed the order without hearing petitioner, hence, order of State Commission may be set aside and order of District Forum may be confirmed.

5. Learned State Commission has observed in its order that – “ Respondent has been served but failed to appear either in person or through his agent/representative. Waited sufficiently. No request or intimation has been received so far. Hence, respondent is proceeded exparte”.

This observation clearly reveals that petitioner did not appear before the State Commission even after service and in such circumstances, impugned order was passed. Learned Counsel for the petitioner has drawn my attention towards different order sheets from the year 2006 to 11.2.2011. In the last order sheet dated 11.2.2011, learned State Commission observed as under :

“ Service not effected. Fresh notice be issued to the respondent registered post for 5.4.2011 along with the documents relied upon by the appellant at own responsibility. In addition to this office is also directed to issue notice to the respondent for the date fixed. Till then stay is extended. Notice be givendasti as requested”.

It appears that after this order notices were sent to the petitioner by registered post and after service of notice petitioner did not appear before the State Commission and in such circumstances exparte order was passed which is in accordance with law.

6. As far merits of the case are concerned, it is an admitted case of the petitioner that the plot was surrendered by him and he received refund amount and after 5 months of receiving refund, complaint was filed before the District Forum for reallotment of plot. Learned State Commission has rightly placed reliance on judgment of Punjab and Haryana High Court and judgement of the State Commission in HUDA Vs. Pashu Lal Nagpal – 2010 (1) CPC 277 wherein it was held that after surrendering plot and taking refund the complainant has no right to get the surrendered plot.

7. The State Commission has rightly allowed appeal and dismissed complaint as petitioner had already surrendered plot and received refund. I do not find any illegality or material irregularity in the impugned order and in such circumstances, the revision petition is liable to be dismissed at admission stage.

8. Consequently, the revision petition filed by the petitioner is dismissed without any order as to cost.

..………………Sd/-…………… ( K.S. CHAUDHARI, J)

PRESIDING MEMBER

K NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.1905 OF 2012

(Against the order dated 19.08.2011 in Appeal No.888 of 2009 of the State Commission, Uttar Pradesh)

Lucknow Development Authority, Through its Secretary, 6, Jagdish Chand Bose Marg, Lucknow (U.P.)

……….Petitioner

Versus

Ram Babu Mehrotra R/o 164-C DDA Flats, Motiyakhan, New Delhi

.....Respondent

BEFORE HON’BLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBER HON’BLE MR. VINAY KUMAR, MEMBER

For the Petitioner : Mr. Shuaib- Uddin, Advocate For Mr. Shakil Ahmad Syed, Advocate

For the Respondent/Caveator: Mr. Vishal Chadha, Advocate

PRONOUNCED ON: 19.11.2012 ORDER

PER MR.VINAY KUMAR, MEMBER

This revision petition is filed by Lucknow Development Authority against the order of the UP State Consumer Disputes Redressal Commission in Appeal No.888 of 2009. The State Commission has allowed the appeal of the Complainant/ Ram Babu Mehrotra against the order of District Forum-II, Lucknow.

2. At the very outset, of the impugned order, the State Commission has observed that:-

“This appears to be second round of litigation between the appellant and the LDA. The complainant filed two companies nos. 735/2000 and 786/2004. The present appeal has been preferred against the judgment dated 28.04.2009 of the District Consumer Forum-II, Lucknow, whereby the complaint was dismissed on the ground that the judgment dated 09.07.2001 passed in complaint case no.735/2000 was not complied with by the complainant.”

3. The matter pertains to allotment of house to the Complainant in 1999 by the Lucknow Development Authority. The payment for it was spread over the period 12.4.1999 to 18.6.2001. Allegedly by June, 2001 he had paid a sum of Rs.138,910/-. However, the possession of the house was not handed over to him till the date of the complaint. On the other hand, OP/LDA had contended that the full amount has not been deposited by the Complainant. Physical possession could be given only after he has deposited the entire amount and had executed the agreement.

4. Complaint No.735/2000, as seen from the record, was decided by the District Forum on 9.7.2001 holding that—

“ The complainant is directed that if he wants to get the allotment of the flat in question from the Respondents, then in that event, he should deposit the entire instalments as agreed together the prescribed late fee in accordance with the rules of the Authority, otherwise, he should take back his money from the Authority as per rules. In continuation of the same, the respondents/opposite party is also directed that in the even the complainant gives an application to it for taking his money back, then it should give his money to him in accordance with rulesalongwith other formalities within a period of one month”

5. In the subsequent Complaint No.786 of 2004, it was prayed that:-

“ 1. Till a definite date within the time limit physical possession may be granted;

2. In future the opposite party on which date gives the physical possession to the plaintiff till that date on the whole deposited amount 21% interest may be granted because from the allottee on depositing the instalment in delay L.D.A. itself is recovering 21% interest.

3. Unseeing the interests of the plaintiff by the opposite party, for deficiency in service, in making delay in giving the possession along with the damages be awarded in the interest of justice and order may kindly be passed in favour of the plaintiff.”

6. The District Forum dismissed the complaint with the following observations:-

“ As in the present complaint once on the same facts the complaint has been disposed of and the parties have already been directed therefore again on the basis of same dispute the complaint could not be filed. As a result the first comply with the directions of the previous order. The complaint of the complainant is not maintainable and is liable to be dismissed.”

7. In the impugned order, the State Commission has taken note of payments received by LDA, on 2.12.2004 and on 6.3.2007 i.e. subsequent to the decision in complaint No. 735/1000, from the Complainant, which were not taken into consideration by the District Forum, in its order of 28.4.2009. The State Commission has therefore, come to a conclusion that the first order of the District Forum dated 9.7.2001 had been fully complied with by the Complainant. Accordingly, the appeal was allowed with costs and registration of the house no.3/438 in Vastu Khand, Gomti Nagar, Phase-2, Lucknow in his favour has been ordered. In this behalf, the revision petition states:-

“ The Hon’ble State Commission was of the view that the appellant complied the order dated 9/7/2001 of the district forum in complaint No.735 of 2000 and the appeal was allowed and the judgment dated 28/4/2009 of the district forum was quashed.”

8. We have perused the records and heard learned counsel on behalf of the two parties. The revision petition has been filed with delay. We find from the application for condonation of this delay of 176 days claims that this time was spent in seeking recall of the order of 19.8.2011. But the application does not show the date when the recall application was filed. It merely states that the concerned miscellaneous application was dismissed by the State Commission on 3.4.2012. Significantly, even in the appeal proceedings before the State Commission, the revision petitioner/LDA had chosen to remain unrepresented, despite issue of notice.

9. In another para the petition states that it had sought early hearing of their application for recall of the impugned order. But, their counsel could not appear due to health reason. It is stated “That the counsel for the respondent/LDA could not appear on 19.08.2011, due to his ill health and the ex-parte order was passed and the appeal was disposed of on merits.” We are unable to accept this argument in explanation of the delay as, in any case, a review against the impugned order did not lie before the State Commission. This cannot be a ground for condonation of delay in filing the revision petition. Therefore, the revision petition is liable to be dismissed on the ground of delay alone.

10. On the facts, the revision petition mentions that an amount of Rs.1,78,000/- was fixed as the cost of the house no.3/438 in Vastu Khand allotted to the Complainant. It also states that after the District Forum order 9.7.2001, the Complainant had paid Rs.128910/-. The balance remained to be paid with penal interest. As against this, the State Commission has observed that:-

“According to the statement of accounts duly furnished by the LDA, the complainant deposited numerous instalments as shown in the statement of accounts Annexure-30. These deposits were made after date of judgment dated 9.7.2001. A total sum of Rs.1,64,615/- was deposited by the complainant and as is recited in this statement of accounts cum demand notice of the LDA dated 01.12.2004 the complainant was asked to deposit a sum of Rs.6,335/-. The complainant complied with the said demand notice and deposited the amount vide challan no.77 dated 2.12.2004. This deposit, demand notice and the statement of accounts were completely ignored by the officials of the LDA. They appear to have further scrutinized the liability of the complainant and arrived at a conclusion vide their further demand notice of 28.02.2007 that still a sum of Rs.7,972/- was outstanding against the complainant. This demand notice too was carried out and videchallan no.76 dated 6.3.2007 (Annexure-33) the complainant deposited the said amount of Rs.7,972/-. It is obvious that these deposits were not taken into consideration by the Forum below when the appellant’s complaint was dealt with and dismissed on 28.4.2009.”

The revision petition fails to explain the above categorical observation in the impugned order, which would clearly show that the LDA has already received Rs.178922/- from the Complainant. Therefore, we are of the view that the revision petition fails on merits as well.

11. Accordingly, the revision petition is held to be barred by limitation and also devoid of merit. The same is therefore, dismissed with no order as to costs. .……………Sd/-…………… (J. M. MALIK, J.) PRESIDING MEMBER

…………Sd/-………………. (VINAY KUMAR) MEMBER S./- NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 1063 OF 2012

(From order dated 29.11.2011 in First Appeal No. 1517 of 2009 of State Consumer Disputes Redresdsal Commission, Haryana, Panchkula)

Krishan Lal Kalra H.No. 1391/ (P) MIG-B Sector-11-12 New Housing Board Colony, Panipat …..Petitioner

Versus

Haryana Urban Development Authority through its

1. Chief Administrator, HUDA, Sector-6, Panchkula, Haryana

2. The Estate Officer, HUDA Sector-13-17, HUDA, Panipat Haryana

….Respondents

BEFORE:

HON’BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER

For the Petitioner : Mr. Nikhil Jain, Advocate

Pronounced on: 22 nd November, 2012

PER MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER

Aggrieved by order dated 29.11.2011, passed by the State Consumer Disputes Redressal Commission, Panchkula (for short, ‘State Commission’), petitioner has filed this petition.

2. Brief facts are that initially plot No. 1349-P, Sector-11 and 12 Part-I, Urban Estate, Panipat was allotted to Smt. Bala wife of Lakhmi Chand by the respondents/o.ps, vide allotment letter dated 9/12.12.1985. Later on, Smt. Saroj Bala transferred the said plot in the name of petitioner/complainant on 28.5.1987 after receiving Rs.26,407.70P and all the future installments were to be paid by the petitioner. The plot was transferred in the name of the petitioner, vide re-allotment letter no. 6987 dated 21.5.2007 with the subject of re-allotment of plot No.164-P, Sector-12. Petitioner has stepped into the shoes of Smt. Saroj Bala on 28.5.1987 for all intends and purposes and became the consumer of respondents. The original plot no. 1349-P was under dispute, so fresh draw was held on 07.07.2005. In lieu of said plot no. 1349-P, a new plot no. 164-P, Sector-12 was allotted in the name of the original allottee, vide letter no. 9061 dated 01.08.2005. Tentative price of the plot no. 164-P was fixed by the OPs at Rs.1,05,601.70P. The original allottee paid Rs.9,603/- on account of application money and Rs. 16,804.70P, at the time of allotment of the plot and remaining amount was to be paid in installments. The entire payment of the plot has been deposited by the petitioner but despite that, the possession of the plot has neither been offered nor delivered to him by the respondents. Respondents have been illegally recovering interest at the rate of 18% p.a. from the petitioner on due amount of installments to the tune of Rs.5,55,075.30p. It is alleged by the petitioner that respondents have no legal right to claim or recover any interest from the original allottee/petitioner and petitioner is entitled to get refund of the amount deposited by him by way of interest.

3. Respondents in their written statement took preliminary objection that petitioner has got no locus standi to file the complaint. It is stated that plot no. 1349-P was allotted to Smt. Saroj Bala, but in view of the dispute of that plot, another plot no 164-P was allotted in her name. It is further stated that after completing the due formalities, possession of the plot in question was offered to the petitioner, vide letter no.13033 dated 18.09.2007. It is denied that respondents have recovered interest illegally from Smt. Saroj Bala. The petitioner is not entitled to refund of any amount of interest. Respondents also denied any deficiency in service on its part.

4. District Consumer Disputes Redressal Forum, Panipat (for short, ‘District Forum’) vide its order, dated 07.09.2009, dismissed the complaint.

5. Petitioner challenged the order of District Forum, before the State Commission which dismissed petitioner’s appeal, vide its impugned order.

6. I have heard learned counsel for the petitioner and gone through the record.

7. It is contended by learned counsel that admittedly petitioner is the allottee of plot in question as the plot has been transferred in his name. Petitioner has made all the payments of remaining amount but respondents were negligent and offer of possession of the plot in question was not made for twenty years. Hence, petitioner has locus standi to file the complaint. Under these circumstances, orders passed by the fora below are liable to be set aside. 8. It is admitted fact that original allottee of the plot in question was one Smt. Saroj Devi, whereas petitioner is a re-allottee. Hence, petitioner is liable to pay all the dues which were to be paid by the original allottee and petitioner cannot escape from their liability.

9. District Forum in its order has held;

“ In the present case, possession of the plot No. 164-P was offered to the complainant on 18.04.2007 in whose name the plot was transferred from the name of the original allottee, which is clear from Ex. R6 and according to R5, the plot was re-allotted in the name of the complainant on 29.12.2006, hence the question of payment of interest by the complainant prior to 29.12.2006 does not arise at all and after 29.12.2006, nothing has been paid by the complainant. Counsel for OPs also referred to citation 2001(3) RCR (Civil), page 276 titled as Smt. Kanta Devi Budhiraja Vs. State of Haryana in which it is held “allottee cannot avoid contractual to pay installments of price on due dates on the pretext of lack of development”. In view of the above discussion, the complainant has totally failed to prove that he has paid any amount to OPs rather first time, the plot was re-allotted/transferred in his name on 29.12.2006. Hence, whichever amount was paid prior to 29.12.2006, the complainant is not entitled to get refund and charging of interest on the installments from Smt Saroj Bala, who never resisted to Ops in depositing the amount, is justified. Once the allottee accepts the terms and conditions of the allotment letter, he cannot challenge the act of authorities demanding interest in view of the terms and conditions of the allotment letter. In view of the above discussion, we find no merit in the complaint and the same is hereby dismissed with no order as to costs”.

10. The State Commission, while affirming the order of District Forum, has observed;

“ We have gone through the impugned order and have taken into consideration the facts and circumstances of the case as well as case law Haryana Urban Development Authority Vs. Raje Ram, reported in 1 (2009) CPJ, 56, wherein it has been held by the Hon’ble Apex Court that re-allotee cannot be compared with the original allottees, who is well aware about the delay in possession. The ratio of the above case Raje Ram (supra) is fully applicable to the facts and circumstances of the present. In this views of the matter, we do not find any force in the appeal preferred by the appellant/complainant. No interference in the impugned order is called for. No merit. Dismissed. However, in terms of the order passed in case “ Laxmi Engineering Works Vs. PSG Industrial Institute” reported in (1995) 3 SCC 583, the respondent/complainant may seek his remedy before the civil court/court of competent jurisdiction, if so desire”.

11. Apex Court in Raje Ram (supra) has laid down that ; “7. Respondents in the three appeals are not the original allottees. They are re-allottees to whom re-allotment was made by the appellant in the years 1994, 1997 and 1996 respectively. They were aware, when the plots were re-allotted to them, that there was delay (either in forming the layout itself or delay in delivering the allotted plot on account of encroachment etc). In spite of it, they took re-allotment. Their cases cannot be compared to cases of original allottees who were made to wait for a decade or more for delivery and thus put to mental agony and harassment. They were aware that time for performance was not stipulated as the essence of the contract and the original allottees had accepted the delay. The appellant offered possession to respondents (re-allottees) and they took possession of the respective plots on 27.6.2002, 21.3.2000, and 13.9.1999 respectively. They approached the District Forum in 1997, within a short period from the dates of re-allotment in their favour. They had not paid the full price when they approached the District Forum. In the circumstances, having regard to the principles laid down by this Court in Ghaziabad Development Authority v. Balbir Singh - 2004 (5) SCC 65, Darsh Kumar (supra) and Bangalore Development Authority v. Syndicate Bank - 2007 (6) SCC 711, we are of the view that the award of interest was neither warranted nor unjustified”.

12. There are concurrent findings of facts given by two fora below in the present case. No legal issue has been raised in the present revision petition. 13. Present revision petition has been filed under Section 21(b) of the Act. It is well settled that the powers of this Commission as a Revisional Court are very limited and have to be exercised only, if there is some prima facie jurisdictional error in the impugned order. 14. Hon’ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. 2011 (3) Scale 654 has observed ;

“ Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two Fora”.

15. Thus, no jurisdiction or legal error has been shown to us to call for interference in the exercise of power under section 21 (b) of the Act, since two fora below have given cogent reasons in its orders, which does not call for any interference nor they suffer from any infirmity or revisional exercise of jurisdiction.

16. It is not that every order passed by the fora below is to be challenged by a litigant even when the same is based on sound reasoning.

17. Under these circumstances, the present petition is without any legal basis and the same is hereby dismissed with cost of Rs. 10,000/-.(Rupees Ten Thousand only)

18. Petitioner is directed to deposit cost of Rs.10,000/- (Rupees Ten Thousand Only) by way of demand draft, in the name of “Consumer Legal Aid Account” of this Commission, within four weeks from today. In case, petitioner fails to deposit the said cost within the prescribed period, then it shall also be liable to pay interest @ 9% p.a., till realization. 19. List on 01.02.2013 for compliance.

……………………………J.

(V.B. GUPTA)

PRESIDING MEMBER

SSB NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

FIRST APPEAL NO.522 of 2007 (From the Order dated 24.08.2007 in Complaint No.576/2006 of the State Consumer Disputes Redressal Commission, Karnataka)

1. M/s. Charan Homes Pvt. Ltd. Builders & Developers, No.11, 80 Ft. Road, HMT Layout, R.T. Nagar, Bangalore-560 032 2. Sri K.V.V. Sathyanarayana Reddy, Managing Director, M/s. Charan Homes Pvt. Ltd. Builders & Developers, No.11, 80, Ft. Road, HMT Layout, R.T. Nagar, Bangalore-560 032 .. Appellants

Sri Jai Prakash Rai, M.G. S/o Late B. Guddappa Rai, Flat No.TF-2, 3rd Floor, Alpine View Apartments, No.15/1, 3rd Cross, 2nd Main, Bellary Road, Ganganagar, Bangalore-560 032 …..Respondent

BEFORE: - HON’BLE MR. JUSTICE ASHOK BHAN, PRESIDENT HON’BLE MRS. VINEETA RAI, MEMBER

For the Appellants : Mr. S.R. Sudarram, Advocate

For the Respondent : Mr. Sampat Anand Shetty, Advocate

PRONOUNCED ON: 22.11.2012

O R D E R

ASHOK BHAN, J., PRESIDENT

Appellants which were Opposite Parties before the State Commission have filed this Appeal against the judgment and order dated 24.08.07 passed by the State Consumer Disputes Redressal Commission, Karnataka (in short, ‘the State Commission’) in Complaint No. 576/2006 wherein the State Commission allowing the complaint filed by the Respondent has directed the Appellants to allot a two bed room flat in the First Floor of the Multi Storeyed Building constructed by them in the land bearing Corporation No.21 corresponding to new No.19, Melvelle House Grounds, Palace Cross Road, Bangalore-560 020 bounded on the “East by K.T. Apartments, West by Plot No.2 of Sri N. Govind, North by Palace Cross Road, South by Madras Bangalore Railway Line’ as described in the Agreement dated 24.01.04 within a period of 60 days from the date of the Complainant paying the balance amount, if any. Rs.5,000/- were awarded as costs. FACTS:-

Complainant/Respondent was in possession of non- agricultural land in Property Nos.18, 19, 20 & 29 at Melvelle House Grounds, Palace Road, Bangalore and was managing same on behalf of the original owner Narayana Reddy. In 1983, a partnership firm, namely, M.M. Foundation was constituted to develop the property bearing No.19 at the request of original owner. Respondent was one of the Partners of the Firm. Since there was no progress in the development of the said property, a tripartite agreement was entered into among the Appellants builder (Opposite Party Nos. 1 & 2), original owner of the Property and the M.M. Foundation for constructing a multi-storeyed building consisting of residential flats for sale to the intending buyers. Thereafter, on Respondent’s agreeing to give up his right as a partner of M.M. Foundation, Appellants entered into an agreement on 24.01.04 with the Respondent for sale of a residential flat measuring 1200 Sq. Ft. in the Ist Floor of the said multi-storeyed building for consideration @ Rs.2,000/- per Sq. Ft. Respondent paid a sum of Rs.15 lakh towards sale consideration to the Appellant which was also mentioned in the Agreement. In terms of the agreement, Respondent was liable to pay an additional sum of Rs.50,000/- in case the actual built up area in the flat sold to him exceeded 1200 Sq. Ft. Appellants did not deliver and register the sale deed in respect of the said flat in favour of the Respondent. Complainant, being aggrieved, filed the complaint before the State Commission. Appellants, on being served, entered appearance and filed their written statement resisting the complaint, inter-alia, on the grounds; that the agreement relied upon by the Respondent was a sham and colourable document entered into just to wriggle out of the hurdles created by the Respondent to stall execution of the project and to cause hardship to the Appellants; that the Respondent should be relegated to the Civil Court for seeking the relief of specific performance of the agreement for sale. State Commission, after scanning the material available on record and going through the evidence led by the parties allowed the complaint and directed the Appellants to allot a two bed room flat in the First Floor of the Multi Storeyed Building constructed by them in the land bearing Corporation No.21 corresponding to new No.19, Melvelle House Grounds, Palace Cross Road, Bangalore-560 020 bounded on the “East by K.T. Apartments, West by Plot No.2 of Sri N. Govind, North by Palace Cross Road, South by Madras Bangalore Railway Line’ as described in the Agreement dated 24.01.04 within a period of 60 days from the date of the Complainant paying the balance amount, if any. Rs.5,000/- were awarded as costs. State Commission observed thus:-

“ In so far as the maintainability of the complaint under the Consumer Protection Act, we are of the view that under the Agreement the OPs have undertaken to built a flat for the complainant and to hand over possession executing the sale deed. Therefore, it is a contract for rendering service and the complaint under the Consumer Protection Act is maintainable.

The next contention of the OPs is that the agreement is sham colourable and not intended to be put into effect and was executed only to wriggle out of the situation created by the complainant to stall the execution of the project. If that is so, it is for the OPs to get a declaration from the competent Civil Court to that effect. In the present case, OPs have admitted the execution of the agreement with the complainant. As already stated above, the agreement envisages construction of the complex, out of which, the Ops have agreed to sell one flat to the complainant for which consideration is said to have been paid. Under such circumstances, we are of the view that so long as the agreement remains and so long as the agreement is not superceded by an Order of the competent court, the OPs are bound by that agreement and the OPs are, therefore, liable to deliver possession of one flat by executing a registered sale deed in favour of the complainant.”

Appellants, being aggrieved, has filed the present appeal.

At the time of admission of Appeal on 23.10.07, Shri Uday U. Lalit, Senior Advocate for the Appellants after taking instructions from the Appellants made a statement that no two bed room flat is available for sale in the multi-storeyed building in question. In view of the statement made by the Ld. Counsel for the Appellants, the Appeal was admitted. Operation of the order passed by the State Commission was stayed subject to deposit of Rs.50 lakh by the Appellants with this Commission within a period of four weeks of passing of the order. The amount on deposit was ordered to be invested in short term deposits. Appellants preferred a SLP against the said conditional order before the Hon’ble Supreme Court which was dismissed and time was extended for deposit of the amount. Subsequently, by letter dated 08.02.08, Appellants offered a sum of Rs.1,26,00,000/- to the Respondent to settle the claim in full and final. The contents of the letter read:- “Dear Rai, Please excuse me for having dragged you to the Court of Law on the ill-advice of Mr. P.M. Bhat. In lieu of our mutual dialogue and discussion as well as on the advice of our well- wishers, I finally decided to put an end to our long drawn legal battle and settle our disputes amicably, so as to honour the order passed by the Karnataka State Consumer Disputes Redressal Commission, Bangalore. In this regard, I herewith send a cheque bearing No.755386 for Rs.1,26,00,000/- dated 8.2.08 drawn on Karnataka Bank Ltd., R.T. Nagar Branch, Bangalore, towards the full and final settlement of your claims.

Hence, I request you to permit me to withdraw the amount of Rs.50,00,000/- deposited in National Commission as per the Order passed in Appeal No.522/2007 at New Delhi and I will not press my above Appeal pending before the National Commission. Please acknowledge the receipt of the cheque.

The cheque issued by the Appellants to the Respondent towards full and final settlement was dishonourned on presentation by the Bank on the ground of “Payment stopped by Drawer”. Appellants lodged an FIR with the RT Nagar Police Station against the Respondent alleging that he had obtained the cheque by playing fraud. We have heard the Ld. Counsel for the parties at length. Ld. Counsel appearing for the Appellant has made only two fold submissions which were raised before the State Commission that the Agreement was a sham and colourable document not intended to be implemented and the complaint was not maintainable under the Consumer Protection Act, 1986. No other argument was advanced. As against this, Ld. Counsel appearing for the Respondent supports the order passed by the State Commission. We agree with the view taken by the State Commission that the agreement entered into between the parties was not a sham and colourable document not intended to be put into effect. Appellants had agreed to sell the flat to the Respondent and received a sum of Rs.15 lakh from him towards the sale consideration. Appellants could wriggle out of the written contract only on showing that the agreement had been got executed by the Respondent either by playing a fraud or coercion or on mis-representation. Neither any such plea nor any evidence was put on record to show that the Respondent had got the agreement executed from the Appellants either by playing a fraud or coercion or on misrepresentation. In the absence of any such plea or proof, the agreement cannot be termed as a sham and colourable document not intended to be put into effect on a bald submission made by the Appellants. Finding recorded by the State Commission that the agreement between the parties was valid and not a sham and colourable document is affirmed. Learned Counsel appearing for the Appellants strenuously argued that the complaint was not maintainable under the Consumer Protection Act, 1986. We do not find any substance in this submission as well. Under the agreement, Appellants had undertaken to build a flat for the Respondent and to hand over the possession and execute the sale deed. The complaint was maintainable in view of the law laid down by the Hon’ble Supreme Court in Lucknow Development Authority Vs. M.K. Gupta – (1994) 1 SCC 243, in which it has been held that the housing is a service and if the housing firm/Authority failed to comply with its obligation under the agreement, it is liable to compensate the consumer for the same. The relevant para of the aforesaid judgment reads as under:- “6. What remains to be examined is if housing construction or building activity carried on by a private or statutory body was service within the meaning of clause (o) of Section 2 of the Act as it stood prior to inclusion of the expression 'housing construction' in the definition of "service" by Ordinance No. 24 of 1993. As pointed out earlier the entire purpose of widening the definition is to include in it not only day to day buying and selling activity under-taken by a common man but even such activities which are otherwise not commercial in nature yet they partake of a character in which some benefit is conferred on the consumer. Construction of a house or flat is for the benefit of person for whom it is constructed. He may do it himself or hire services of a builder or contractor. The latter being for consideration is service as defined in the Act. Similarly when a statutory authority develops land or allots a site or constructs a house for the benefit of common man it is as much service as by a builder or contractor. The one is contractual service and other statutory service. If the service is defective or it is not what was represented then it would be unfair trade practice as defined 257 in the Act. Any defect in construction activity would be denial of comfort and service to a consumer.

When possession of property is not delivered within stipulated period the delay so caused is denial of service. Such disputes or claims are not in respect of immoveable property as argued but deficiency in rendering of service of particular standard, quality or grade. Such deficiencies or omissions are defined in sub-clause (ii) of clause (r) of Section 2 as unfair trade practice. If a builder of a house uses substandard material in construction of a building or makes false or misleading representation about the condition of the house then it is denial of the facility or benefit of which a consumer is entitled to claim value under the Act. When the contractor or builder undertakes to erect a house or flat then it is inherent in it that he shall perform his obligation as agreed to. A flat with a leaking roof, or cracking wall or substandard floor is denial of service.”

Finding recorded by the State Commission regarding the maintainability of the complaint is also affirmed. In the present case, it is not disputed that the Appellants had failed to deliver and register the sale deed in respect of the flat in favour of the Respondent. Ld. Counsel appearing for the Appellants during the course of arguments reiterated that no two bed room flat is available in the multi- storeyed building. In these circumstances, we mold the relief granted by the State Commission in the following manner:- (i) Appeal is dismissed.

(ii) Appellants are directed to either give a flat measuring 1200 sq. ft. to the Respondent as per the Agreement entered into between the parties or to pay a sum of Rs.1,26,00,000/- offered vide letter dated 08.02.08 towards full and final settlement of the claim, within a period of three months from today failing which the amount shall carry interest @ 9% p.a. from the date of offer of amount of Rs.1,26,00,000/-, i.e. 8.02.08 till payment.

(iii) The sum of Rs.50,00,000/- deposited by the Appellants with this Commission be released in favour of the Respondent along with accrued interest towards the part payment of the decretal amount. (iv) In case Appellants deliver the possession and execute the sale deed of the flat, Respondent would be liable to refund the sum of Rs.50,00,000/- and the amount of accrued interest received to the Appellants with interest @ 9% p.a. from the date of receipt of payment till the date of execution of the sale deed.

……………...... (ASHOK BHAN J.) PRESIDENT

...... (VINEETA RAI) MEMBER Yd NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 4258 OF 2012 (From the order dated 16.08.2012 in F.A. No.1501/2012 of the Karnataka State Consumer Disputes Redressal Commission, Bangalore)

Dr. Sripathi U H.No. 5-2-23 (1), Shanthi Nagar Udupi, Udupi Taluk & Dist. Karnataka

… Petitioner-Complainant

Versus 1.Vicent D’Almeida S/o U.K. Vasantha Kumar Church View, Shirva Village, Church View, Shirva Village Udupi Taluk & District Karnataka

2. Smt. Mariya Gladis Almeida W/o Vincent D’Almeida Church view, Shirva village Udupi Taluk & District Karnatka

… Respondent-opposite party

BEFORE HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER HON’BLE MR. SURESH CHANDRA, MEMBER

For the Petitioner : Mr. B. Subrahmanya Prasad, Advocate

PRONOUNCED ON 29 th NOVEMBER, 2012

O R D E R

PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER This revision petition has been filed against the order dated 16.08.2012 passed by the learned Karnataka State Consumer Disputes Redressal Commission, Bangalore (in short, ‘the State Commission’) in F.A. No.1501/2012 – Dr. Sripathi U Vs. Vincent D’Almeida & Anr. by which appeal at admission stage was dismissed and order of District Forum dismissing complaint was affirmed. 2. Brief facts of the case are that petitioner/complainant purchased two shop room premises from the opposite party/respondent on 28.3.2000 for carrying on business of dentist and opposite party executed sale deed in favour of the complainant. Opposite party also collected Rs.20,000/- from the complainant towards maintenance of the building at the time of registration but opposite party failed to maintain building. There was poor maintenance of electric meter, water pump, generator, etc. and complainant incurred expenditure of Rs.60,000/- for installing new electricity board, Rs.12,000/- for maintenance of water pump and Rs.45,000/- towards generator. In spite of notice dated 2.11.2009, opposite party did not pay the amount, hence, complaint was filed on 30.4.2010. Opposite party resisted claim and submitted that there is no relationship of consumer and service provider between the parties and complaint is time barred, hence, complaint may be dismissed. 3. Learned District Forum after hearing both the parties dismissed complaint being time barred and appeal filed by the petitioner was also dismissed by the learned State Commission vide impugned order. 4. Heard learned Counsel for the petitioner at admission stage and perused record. 5. Admittedly, property was purchased by the petitioner on 28.3.2000 and as per averment in the complaint, petitioner paid Rs.20,000/- towards maintenance of the building to the opposite party at that time but this complaint has been filed after 10 years of incurring expenditure which is clearly time barred and learned District Forum has not committed any error in dismissing the complaint on the ground of limitation and learned State Commission has also not committed any error in dismissing appeal at admission stage. 6. Apparently, there is no relationship of consumer and service provider between the parties and if petitioner has incurred any expenses towards improvement of facilities he should have filed Civil Suit for recovery of expenditure incurred on facilities. 7. Consequently, petition filed by the petitioner is dismissed at admission stage with no order as to costs. Sd/-

.…………………………… ( K.S. CHAUDHARI, J) PRESIDING MEMBER

Sd/- .. …………………………… ( SURESH CHANDRA ) MEMBER k NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 1012 OF 2011 WITH (IA NO.1 & 2 OF 2011, FOR STAY & C/DELAY)

(From the order dated 01.12.2010 in Appeal No.1991/2010 of the State Commission, Rajasthan)

URBAN IMPROVEMENT TRUST BIKANER, RAJASTHAN THROUGHT ITS SECRETARY .… Petitioner

Versus

1. BABU LAL S/O GULAB CHAND R/O GA 4 HANS NIWAS SOUGHT PAWAN PURI BIKANER, RAJASTHAN 2. DISTT. COLLECTOR (EX-OFFICIO CHARIMAN) TOWN IMPROVEMENT TRUST) BIKANER (RAJATHAN) .… Respondents

BEFORE:

HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER

For the Petitioner(s) : Mr. Aruneshwar Gupta, Advocate

Pronounced on :3 rd December, 2012

ORDER PER MR. JUSTICE V.B.GUPTA , PRESIDING MEMBER In this revision petition, there is challenge to order dated 1.12.2010, passed by State Consumer Disputes Redressal Forum, Jaipur, Rajasthan (short “State Commission).

2. Brief facts are that the respondent no.1/complainant had applied for a housing plot having size of 34 X 50 with the petitioner in Jodbeed Housing Scheme, floated by the petitioner. Accordingly, respondent no.1 deposited a sum of Rs.21,000/- with the application as security amount on 27.5.2008. Petitioner provided a printed allotment conditions with the application form wherein, availability of all the basic faculties was mentioned. Respondent no.1 was allotted plot no.B-II/989, size 34 X 60 for which allotment letter dated 12.7.2008 was issued. In the said allotment letter, petitioner added a new condition contrary to the conditions published with the application about forfeiting the security amount. According to respondent no.1, petitioner has stated that after deposit of the amount within the period of 30 days from the allotment letter, raising of construction in three years is mandatory. But when respondent no.1 inspected the plots located around the allotted plot, he found that commencing construction work on the allotted plot was not at all probable, because no basic facilities were available there. Due to his reason vide letter dated 7.8.2008, respondent no.1 sought information from the petitioner as to by which time the facilities would be made available. In case, they are unable to make available facilities, then request was made to the petitioner to refund the security amount. But petitioner did not send any reply to it. Respondent no.1 also sent notice through his counsel, but he did not get any reply nor the amount was refunded. On 11.5.2009, respondent no.1 sought information about the same under the Right to Information Act, but no reply was received and was told by the office of the petitioner that he may do whatever he likes to. Therefore, respondent no.1 has prayed that his security amount of Rs.21,000/- be refunded along with interest and also damages and expenses as mentioned in the complaint be awarded. 3. Notice of complaint was issued to the petitioner by the District Consumer Disputes Redressal Forum, Bikaner (short, “District Forum”). Even after effecting service of notice, no reply was filed on behalf of the petitioner. Neither petitioner appeared before the District Forum at any stage of the case. 4. District Forum, vide order dated 11.8.2010, allowed the complaint and passed the following directions ; “ 1. Opposite parties to refund the security amount of Rs.21,000/- to the complainant and also pay a sum of Rs.500/- additionally as the cost of the present complaint. 2. Opposite parties to comply with the above said order within the period of one month from the date of receipt of certified copy of this order, otherwise complainant would become entitled to get interest at the rate of 9 percent per annum on the said security amount from the date of judgment. Certified copy of this order be forwarded to the opposite parties.”

5. Aggrieved by the order of District Forum, petitioner filed an appeal before the State Commission, which dismissed the same vide impugned order. 6. Along with present petition, an application seeking condonation of delay has also been filed. Since, there is a nominal delay of 20 days, for the reasons mentioned in the application, delay is condoned and application is allowed. 7. It has been contended by learned counsel for the petitioner that respondent as per his own admission had not acted upon the demand notice sent by the petitioner. Hence, respondent no.1 cannot take advantage of his own wrong. It has also been contended that no service charge or remuneration was charged. Thus, no service was rendered. As such, respondent does not fall within the scope of the “Consumer”. The proper remedy for the respondent was to file a Civil Suit. In support, learned counsel has relied upon HUDA and Anr. Vs. Kewal Krishan Goel & Ors., (1996) 4 SCC 249.

8. District Forum in its order has held ; “ The main grievance of complainant in the case is that because there had been absolute absence of basic facilities in the said scheme proposed by opposite parties and in the absence of the above said, raising construction on it was also not probable, therefore, he requested to the opposite parties to refund his security amount. Earlier to this he sought the information from opposite parties as to by which time proposed facilities and basic facilities would be made available in the area of the said plot, but opposite parties did not deem it just to provide any information to complainant and did not send any reply to his letter and notice also. In our opinion, when opposite parties failed to tell to complainant as to by which time the said basic facilities would be made available in the Housing scheme, the in such situation, raising demand by complainant for refunding his security amount of his plot was not unjust or illegal, reason being when opposite parties are mentioning in their allotment letter about re-allotment of the said plot and opposite parties cannot suffer any loss in re-allotment of the plot. In addition to this, in the conditions of allotment published by the opposite parties about the said scheme, copy of which has been placed on record on behalf of complainant, no any such condition of forfeiting of security amount has been mentioned and nor any such condition which would have been established according to law or rules, has been produced before us. Therefore, under all these circumstance, in our opinion, not refunding his security amount amounts to deficiency in services on the part of the opposite parties and we deem it just to order the opposite parties that they refund the security amount of Rs.21,000/- to the complainant and also pay a sum of Rs.500/- additionally as the cost of the present complaint.”

9. State Commission, affirmed the above findings of the facts. 10. As apparent from the record, no reply was filed by the petitioner in the District Forum. Under these circumstances, averments made by respondent no.1 in its complaint, have gone un-rebutted and shall be deemed to be admitted. Even otherwise, petitioner has nowhere mentioned in this revision petition, as to from which date basic facilities have been made available in the area, where the plot allotted to respondent no.1 is situated. Thus, deficiency on the part of the petitioner is writ large in this case. Decision of Kewal Krishan Goel (supra) is not applicable to the facts of the present case. 11. Under Section 21 of the Consumer Protection Act, 1986, this Commission can interfere with the order of the State Commission where such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity. There is no illegality or material irregularity on the part of the State Commission in this case. 12. Hon’ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. 2011 (3) Scale 654 has observed ;

“Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora.”

13. Thus, no jurisdictional or legal error has been shown to call for interference in the exercise of powers under Section 21 (b) of the Consumer Protection Act, 1986. Thus, present petition is hereby, dismissed with cost of Rs.10,000/- (Rupees Ten Thousand only).

14. Petitioner is directed to deposit the cost of Rs.10,000/-, by way of demand draft in the name of “Consumer Legal Aid Account” of this Commission, within eight weeks from today.

15. In case, petitioner fails to deposit the said cost within the prescribed period, then it shall also be liable to pay interest @ 9% p.a., till realization.

16. Pending applications also stand disposed of.

17. List on 8.2.2013 for compliance.

….………………………J (V.B. GUPTA) PRESIDING MEMBER

Sonia/ NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 504 OF 2012. along with (I. A. No. 03 of 2012)

(Against the order dated 02.11.2011 in Appeal No. 205 of 2011 U.T. State Consumer Disputes Redressal Commission, Chandigarh)

Chanidigarh Housing Board (CHB), Sector-9, Chandigarh. ……Petitioner. Versus

Ms. Poonam Singh through her Attorney Bhartendu Sood s/o Late Sh. Bhupinder Nath, House No. 231, Sector-45-A, Chandigarh –160047. …….Respondent

BEFORE: HON’BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER HON’BLE MR. VINAY KUMAR, MEMBER For the Petitioner (s): Mrs. Rachna Joshi Issar, Advocate Pronounced on: 3 rd September, 2012 PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER O R D E R In this revision petition there is challenge to order dated 2.11.2011, passed by U. T. State Consumer Disputes Redressal Commission, Chandigarh (for short as, ‘State Commission’) vide which appeal of the petitioner against order dated 27.6.2011, passed by the District Consumer Disputes Redressal Forum-I, U. T., Chandigarh(for short as, ‘District Forum’) was dismissed. 2. Brief facts are that respondent/complainant was allotted Flat No. 231, Sector 45- A, Chandigarh on hire-purchase basis, vide allotment letter dated 07.02.1989. She paid all the installments, well before the expiry period i.e. April, 2001 but to her surprise when she applied to petitioner/OP for “No Dues Certificate”, she was told that a sum of Rs.52,172/- was recoverable from her, which included 5 annual and 7 ground rent installments. On her protest, petitioner reduced the aforesaid amount to Rs.41,131/- vide letter dated 15.9.2009, which was further reduced to Rs.36,819/- vide letter dated 18.5.2010, on protest of the respondent. Still discontented, respondent again protested vide letter dated 25.8.2010, upon which petitioner, vide letter dated 13.9.2010 drastically reduced the outstanding amount to Rs.21,019/- and conceded that all monthly and ground rent installments stood cleared and the outstanding amount towards the penal interest. On receipt of the calculation sheet in respect of the aforesaid amount of Rs. 21,019/-, respondent came to know that petitioner had charged Rs.42,395/- as penalty on 83 installments which were delayed by more than 3 months @25% of the installment amount by invoking condition no.7 of the allotment letter. Whereas, the maximum penalty on each delayed installment could be Rs. 140/-.Therefore, respondent vide letter dated 7.10.2010, requested the petitioner to calculate the penalty on 83 installments @ Rs.140/- per installment and to refund Rs. 9,756/-, after taking into account all payments made by her. When grievance of the respondent was not redressed, she filed a complaint under Section 12 of the Consumer Protection Act, 1986 (for short as ‘Act’). 3. Petitioner in its written statement took the plea that the dwelling unit was allotted to the respondent, who had accepted the terms and conditions of the allotment letter. As per conditions of allotment, allottee was required to make the payment in time, so as to evade penal consequences. Since, petitioner did not make the payment in time, therefore she was burdened with interest strictly in accordance with rules and notification dated 30.8.1996, which provide for imposition of 25% penalty in case of default in making payment by the allottee. Thus, there was no deficiency in service on their part. 4. District Forum vide order dated 27.06.2011, held that since no notice was given, therefore imposition of penalty @ 25% on the installments amount is illegal and unjustified. It directed the respondent to calculate liquidated damages as mentioned in its order. 5. Aggrieved by the above directions of the District Forum, petitioner filed an appeal before the State Commission, which dismissed the same with cost of Rs.5,000/-.

6. We have heard the learned counsel for the petitioner and have perused the written submissions as well as the record.

7. It has been contended by the learned counsel that there is no deficiency of service on the part of the petitioner in demanding the unpaid arrears payable as per agreed terms between the parties. It is the respondent who had breached the terms and conditions of the allotment letter. Thus, present complaint is not maintainable. In support, petitioner’s counsel relied upon the following judgments;

(i) Ravneet Singh Bagga Vs. KLM Royal Dutch Airlines and Another,

(2000) 1 Supreme Court Cases 66 ;

(ii) Interglobe Aviation Limited Vs. N. Satchidanand,

(2011) 7 Supreme Court Cases 463 and

(iii) Bihar State Housing Board and Others Vs. Prio Ranjan Roy,

(1997) 6 Supreme Court Cases 487.

8. Respondent in her complaint had sought the following reliefs ;

(a) refund back the excess amount of Rs.9,756/- paid by her to the Board against various Notices.

(b) to pay interest on the excess amount @ 24%

(c) to pay to the applicant a suitable amount for the mental agony she suffered in last two years as the Hon’ble forum may deem fit. She had to make five representations and every time her stand was vindicated. In the process she lost valuable time and money both.

(d) cost of litigation”.

9. District Forum in its order has held;

“8. Now, it is clear that the liquidated damages for the delayed payment shall not exceed 10% of the amount due. It is also clear that in case of default for more than three consecutive months in respect of any installments, the tenancy shall be liable to be terminated. However, the chairman may review the allotment and tenancy before referring the case to the Competent Authority under Chapter VI of the Act, on payment of penalty @ 25% of the amount of installments due.

9. Admittedly, in this case, neither the tenancy has been terminated nor the complainant has been evicted from the dwelling unit, therefore, OP had right to claim the liquidated damages which does not exceed 10% of the amount due. Learned counsel for the OP made a reference to the notification dated 30.08.1996 whereby vide section 6(13) (a), it has been stated that in the sub regulation (4) for the figure 10 the figure 25 shall be substituted. Admittedly, the said notification did not have retrospective effect and will apply prospectively from 30.08.1996 onwards. It is not in dispute that the allotment of the unit was made to the complainant on 06.02.1989 vide allotment letter (Annexure C-6). Therefore, the notification referred to above dated 30.08.1996 will not apply to it and the OP has no right to charge the liquidated damages @ 25%.

10. Moreover, the condition No. 7 of the allotment letter referred to above could be invoked after issuing a notice to the allottee to provide him an opportunity of being heard. No such notice was issued, therefore, the imposition of penalty @ 25% on the installment amount is illegal and unjustified. 11. Confronted with this type of the situation, OP is directed to calculate the liquidated damages as per the observations made hereinabove and to give the refund of the amount, if received, in excess from the complainant within 30 days from the date of receipt of certified copy of this order. OP is also directed to pay to the complainant a sum of Rs. 10,000/- as compensation for mental agony and harassment besides Rs. 2,500/- as costs of litigation, failing which the OP is liable to pay the entire amount to the complainant with interest @ 9% p.a. from the date of the filing of the complaint i.e. 03.02.2011 till its realization”.

10. Petitioner instead of calculating the liquidated damages and to refund the amount, if received in excess from the respondent as directed by the District Forum, filed an appeal before the State Commission. The State Commission rightly dismissed the appeal observing as under ; “ The record would show that all is not well in their Accounts Wing where either incompetent persons are posted who are unable to workout the arrears due from the allottee or they intentionally do not workout proper arrears and give inflated figures to injure the financial interest of the allottees. The higher officers appear to have left the matter to these unscrupulous officials instead of getting the audit done from some independent agencies with respect of each allotte to ascertain as to what amount has been paid and is due from them. The OP/appellant furnished the statement in respect of the ground rent showing that the complainant has deposited a sum of Rs.13478.32 in excess of the ground rent due from him as workedout upto 10.2.2010. If ground rent had been deposited in excess there was no question of issuing a notice to the complainant by the OP/appellant alleging that ground rent was due from him but even in spite of that such notices have been issued by the OP/appellant. The complainant has produced a notice Annexure OP-5 dated 18.5.2010 in para 3 of which it is specifically mentioned that the complainant had not deposited the ground rent for a period from 10.2.2006 and was liable to pay amount of ground rent alongwith applicable rate of penal interest. There is another letter Annexure-2 dated 12.1.2009 in which also the complainant was told that he had not deposited the ground rent./lease money annually and it was due from him for the period from 10.2.2004 to 9.2.2010 which he was liable to pay alongwith penal interest. On the other hand they have themselves produced two account statements showing that he had continuously been depositing the said amount, which was apportioned to a previous date. The learned Counsel for the OP/appellant is at a loss to explain as to how the complainant was in arrears of ground rent when he had already deposited Rs.13,478.32 in excess as per their own record. If the officials of the OP/appellant had applied their mind such a notice regarding the arrears in deposit of ground rent would not have been issued to the complainant. The manner in which the account of complainant and may be of many other allottees and tenants are maintained also leaves much to be desired. The complainant was informed vide a notice Annexure-2 dated 12.1.2009 that a sum of Rs.52,172/- was due from him. When he questioned the accuracy of the amount, another letter Annexure -3 dated 15.9.2009 was issued reducing the said amount of Rs.41,131/-. This is certain that during that period of 8 months complainant had not deposited any such amount. Further the complainant was not satisfied with the calculations and he again sent another letter upon which the amount was brought down to 36819/- as per Annexure -4 dated 18.5.2010. Dissatisfied the complainant again represented and the officials of the OP/appellant were obliged to further bring down the amount to Rs. 21,019/-vide Annexure-5 dated 13.9.2010. Needless to mention that during this period of about one year and 8 months no such amount of 30,000/- had been deposited by the complainant which could reduce the figure from 52,172/- (as on 12.1.2009) to Rs.21,019/- (as on 13.9.2010). It appears that the allottees are at the mercy of such employees of the OP/appellant who inflate figures according to their whims and can reduce the same if challenged. Even after the present complaint was filed against the OP plunging it into litigation, it appears no action would have been taken against the said employees who are playing with the figures and are apparently deficient in rendering service, where they cannot even calculate the amount due from the allottees and can give inflated figures to scare the allottees and force them to deposit extra amount with the OP/appellant. The inefficiency of the OP/appellant in calculating the amount due from the allottee is in itself a deficiency in service It is not only that, such things happen before the complainant come to Consumer Fora but even after the present case was decided a similar trick has been played by the OP/appellant. As per the accounts statement provided by the OP, referred to above, the complainant had already deposited a sum of Rs.13,478.32 in excess of amount due from him as ground rent. As regards the EMIs’ the other statement shows that a sum of Rs.34,496.65 was due from complainant towards installments, however, during the pendency of appeal the OP/appellant submitted an application dated 30.9.2011 in which the ground rent paid in excess was mentioned to be 6,533/- When questioned as to how this amount came down from Rs.13,478/- to Rs.6,533/- the learned Counsel for the appellant was at a loss to explain. His contention was that the additional amount was adjusted towards the payment of installments. If that be so then why this amount of Rs.6,533/- was also not adjusted towards the arrears due from the complainant could not be answered by the learned Counsel. It is therefore, clear that the OP is not maintaining the accounts of the allottees properly and this by itself constitutes deficiency in service.

The learned Counsel for the appellant has not been able to point out any draw back in the order passed by the learned District Forum which in our opinion is perfectly legal and valid. There is no merit in this appeal and the same is accordingly dismissed with litigation costs of Rs.5,000/-.

In order to safeguard the interest of the OP/appellant from its own employees, it is made clear that the OP/appellant would be free to recover amount of compensation and litigation costs etc. from its employees due to whose fault proper accounts were not maintained and notices depicting the correct amount due from the complainant was not issued. It would however, be done after giving show cause notice to such employee(s) of being heard in accordance with Punishment and Appeal Rules applicable to such employees”.

11. In nutshell respondent’s case is that when she applied for “No Dues Certificate’’, she was told that certain amount was recoverable from her which includes certain annual as well as ground rent installments. On making protest by her, petitioner’s Board went on reducing the same. Ultimately, she was asked to pay a sum of Rs. 21,019/-.

12. The defence of petitioner as per its written statement is that, respondent has breached the terms and conditions of the allotment letter. Moreover, respondent is not entitled to any refund, rather Rs. 21,019/- are due towards her.

13. Averments made by respondent in paras 4 to10 of her complaint have been admitted by the petitioner in its written statement.

14. In para 12 of the complaint, respondent has averred that;

“ No such Notice was issued to her for imposing penalty of 25% on the installments and the same is unlawful and not inconformity of the conditions of the allotment letter”. 15. Petitioner in response to para 12 of the complaint has simply stated that;

“the penalty has been imposed strictly as per rules and notification dated 30.08.1996 which provides imposition of 25% penalty in case of default in making payment by the allottee”. 16. Thus, there is no specific denial to the averment that;

“ No such notice was issued to the respondent before imposing penalty of 25% ”. 17. Hence, the averments made by respondent in this regard shall be deemed to be admitted as correct. Moreover, Fora below have held that no such notice was issued, therefore the imposition of penalty of 25% on the instalment amount is illegal and unjustified. We find no reason to disagree with these findings of the Fora below. 18. None of the judgments as relied upon by learned counsel for petitioner are applicable to the facts of the present case.

19. Present revision petition has been filed under Section 21(b) of the Act. It is well settled that the powers of this Commission as a Revisional Court are very limited and have to be exercised only, if there is some prima facie jurisdictional error in the impugned order. 20. Hon’ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. 2011 (3) Scale 654 has observed ;

“Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two Fora”. 21. Thus, no jurisdiction or legal error has been shown to us to call for interference in the exercise of power under section 21 (b) of the Act, since two Fora below have given cogent reasons in their orders, which does not call for any interference nor they suffer from any infirmity or revisional exercise of jurisdiction.

22. It is not that every order passed by the Fora below is to be challenged by a litigant even when the same is based on sound reasoning.

23. Under these circumstances, the present petition is without any legal basis and the same is hereby dismissed with cost of Rs. 10,000/-.

24. Petitioner is directed to deposit cost of Rs.10,000/- (Rupees Ten Thousand Only) by way of demand draft, in the name of “Consumer Legal Aid Account” of this Commission, within four weeks from today. In case, petitioner fails to deposit the said cost within the prescribed period, then it shall also be liable to pay interest @ 9% p.a., till realization. 25. List on 12.10.2012 for compliance.

…………………………J. (V.B. GUPTA) PRESIDING MEMBER

…………………………J.

(VINAY KUMAR)

MEMBER NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

(1) REVISION PETITION NO.2111 OF 2012 (Against the order dated 9.2.2012 in Appeal No. 743/2007 of the State Commission, Haryana, Panchkula)

SOM PRAKASH S/o Shri Bhagwan Dass R/o Village Budhabhana, Distt. Sirsa, SIRSA (Haryana) ...... Petitioner (s) Vs.

1. HARYANA URBAN DEVELOPMENT AUTHORITY Through its Chief Administrator HUDA Building, Sector-6, PANCHKULA

2. ESTATE OFFICER HUDA SIRSA

3. EXECUTIVE ENGINEER Public Works Department (Public Health) Division No.1, Malgodam Road, SIRSA

4. STATE OF HARYANA Through Collector, SIRSA …….Respondent (s)

BHARAT BHUSHAN S/o Sh. Om Parkash R/o Village Panjuana, Tehsil & Distt. SIRSA (Haryana) ...... Petitioner (s)

KAPIL ARORA S/o Sh. Anand Sawroop R/o Shop No.11, New Anaj Mandi SIRSA (Haryana) ...... Petitioner (s)

1. HARYANA URBAN DEVELOPMENT AUTHORITY Through its Chief HUDA Building, Sector-6, PANCHKULA

(4) REVISION PETITION NO.2338 OF 2012 with I.A. NO.02 of 2012 (Condonation of Delay) (Against the order dated 30.1.2012 in Appeal No. 1099/2008 of the State Commission, Haryana, Panchkula)

HARISH ARORA S/o Sh. Ganpat, R/o H. No.228, C-Block, Sirsa Distt. SIRSA (Haryana) ...... Petitioner (s)

BEFORE: HON'BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER

For Petitioner in RP No. 2111-2113 of 2012 : Mr. Kamal Chowdhry, Advocate

For Petitioner in RP No. 2338/2012 : Mr. Gaurav Gupta, Advocate

Prononced on: 4 th December, 2012

PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER

Since facts are common and similar question of law is involved in the above noted petitions hence, the same are being disposed of by this common order. 2. There is an application seeking condonation of delay of 21 days in R.P. No. 2338 of 2012. In view of the reasons stated in the application, the delay is condoned and application stand disposed of. 3. Petitioners/complainants in present case are the re-allottees of the plots in question, having got the respective plots transferred in their names from the original owners, vide re-allotment letters issued by the respondent. 4. Controversy in these cases is with regard to the non development of the area where plots in question are situated and for which, can respondent charge interest on the instalments from the petitioners and whether petitioners have any right to seek any compensation from the respondents for not developing the plots in question. 5. Similar issue came up for consideration before the Hon’ble Apex Court in Haryana Urban Development Authority vs. Raje Ram reported in 1 (2009) CPJ, 56, in which the court laid down that; “ 7. Respondents in the three appeals are not the original allottees. They are re-allottees to whom re-allotment was made by the appellant in the years 1994, 1997 and 1996 respectively. They were aware, when the plots were re-allotted to them, that there was delay (either in forming the layout itself or delay in delivering the allotted plot on account of encroachment etc). In spite of it, they took re-allotment. Their cases cannot be compared to cases of original allotteeswho were made to wait for a decade or more for delivery and thus put to mental agony and harassment. They were aware that time for performance was not stipulated as the essence of the contract and the original allottees had accepted the delay. The appellant offered possession to respondents (re-allottees) and they took possession of the respective plots on 27.6.2002, 21.3.2000, and 13.9.1999 respectively. They approached the District Forum in 1997, within a short period from the dates of re- allotment in their favour. They had not paid the full price when they approached the District Forum. In the circumstances, having regard to the principles laid down by this Court in Ghaziabad Development Authority v. Balbir Singh - 2004 (5) SCC 65, Darsh Kumar (supra) and Bangalore Development Authority v. Syndicate Bank - 2007 (6) SCC 711, we are of the view that the award of interest was neither warranted nor unjustified”. 6. It is an admitted fact that, petitioners are re-allottees and not the original allottees. Thus, relying upon the decision of the Hon’ble Apex Court in Raje Ram (supra) and Revision Petition No.1063 of 2012 decided by this Commission on 22.11.2012 in ‘Kishan Lal Kalra vs. Haryana Urban Development Authority, the above revision petitions are not maintainable. Accordingly, the same are hereby dismissed with costs of Rs.5,000/-, each.

7. Petitioners are directed to deposit the respective cost by way of demand draft in the name of Consumer Legal Aid Account of this Commission, within eight weeks, failing which, they shall be liable to pay interest @ 9% p.a. till realization. 8. List for compliance on 15.2.2013. …………………..………..J (V.B. GUPTA) PRESIDING MEMBER

Sg. NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 257 OF 2009 (From the order dated 4.11.2008 in RBT No.430 of 2008 in Appeal No.3208 of 2001 of the State Commission, Chandigarh UT)

Sh. Dina Nath Aged 80 years (Senior Citizen) S/o Sh. Dhannu Ram, R/o 102-A, DDA Flats, Gulabi Bagh, Delhi – 110 007

…Petitioner

Versus

1. Yamunanagar Improvement Trust Through its Chairman, Yamuna Nagar, Haryana

2. Municipal Committee Through its President Yamuna Nagar, Haryana

...Respondent

BEFORE:

For the Petitioner : In person

For the Respondent : Mr. Sanjay Singh, Advocate with Mr. Jagnarayan Kaushik, SDM, Jagadhri & Chairman of Respondent no.1 Trust

Pronounced on: 7 th December, 2012

By way of the present revision petition filed by the petitioner (who is more than 80 years old) has challenged order dated 4.11.2008 passed by State Consumer Disputes Redressal Commission, Chandigarh UT (for short ‘State Commission’). 2. Brief facts are that petitioner/complainant was allotted Plot No.103 measuring 160 sq. yards by respondent no.1/O.P. No.1, vide allotment letter No.1470 dated 6.9.73 in Sarojni Nagar Scheme at Yamuna Nagar. The plot was allotted @ Rs.35/- per sq. yard and the tentative price of the plot was Rs.5,600/-. The final price was subject to actual allotment at site. Subsequently, the allotment of said plot was changed and plot No.59 measuring 200 sq. yard was allotted to the petitioner vide allotment letter No.2184 dated 16.11.73 at the same rate i.e. Rs.35/- per sq. yard, thus, the total cost being Rs.8,750/-. Petitioner paid the earnest money of Rs.500/- on 27.4.73 and the security amount of Rs.450/- was also paid. The first instalment of Rs.1,688/- was paid on 27.11.73 and subsequently, 2nd and 3rd instalments were paid on 11.12.74 and 9.1.76. Respondents were to further take the final balance price from the petitioner after handing over possession and calculating the cost of actual measurement of the plot. In this manner, petitioner had already paid respondent no.1, a sum of Rs.7,877/- against the total price of R.8,750/-. The agreement between the petitioner and respondent no.1 was got singed on 4.2.74 and petitioner paid all the charges. The possession of the plot was to be handed over to the petitioner within 30 days of the payment of first instalment but possession of the pot was not handed over. Petitioner served a legal notice upon respondent no.1 and petitioner was asked to get the possession of the plot, vide memo No.263 dated 18.4.74 and get the building plans approved. However, in spite of repeated efforts, no possession of the plot was delivered to the petitioner. Subsequently, respondent no.1 wrote a letter to the petitioner stating that the layout plan of the colony is under approval and the possession will be delivered after the approval is accorded. In March/April, 1995, petitioner came to know that towards end of 1994, the acquisition of the land was set aside by the Hon’ble Apex Court. Consequently, representation was given to allot an alternative plot at the same price but the same was not done. The petitioner who had paid a sum of Rs.7,877/- out of the total price of the plot amounting to Rs.8,750/- had not received the possession of the plot despite his best efforts. Therefore, petitioner filed a complaint praying that respondents be directed to deliver the possession of the plot measuring 250 sq. yards and they be also directed to compensate him regarding increase in the cost of construction, which occurred due to non delivery of the possession and also compensate him for the loss of rent for that period. It further prayed for directions to be given to the respondents to compensate him for mental agony and physical harassment caused. 3. The version of respondents is that the complaint is hopelessly time barred. On merits, it has been stated that the plot could not be delivered to the petitioner since there was no proper development of the area at that time. Thereafter, a dispute arose and stay was granted by the Hon’ble High Court. As per respondents, neither the possession could be delivered nor the amount was refunded to the petitioner because respondent no.1 was not in a position to refund the same. Subsequently, petitioner was informed that the case has been lost by respondent no.1 and furthermore there was no alternative plot and therefore, petitioner was asked to get the refund of money. Thus, there is no deficiency on the part of respondents. 4. District Consumer Disputes Redressal Forum, Yamuna Nagar (for short, ‘District Forum’) vide order dated 25.7.2001, allowed the complaint and passed the following direction;

“ We therefore, direct the respondents to allot an

alternative plot at Yamuna Nagar to the complainant and also to pay a compensation of Rs.50,000/- due to the escalation in construction charges, cost of materials and also Rs.2,000/- on account of litigation charges within one month from the date of this order, otherwise, penal action under section 27 of the Act will be initiated against the respondents.”

5. Aggrieved by the order of District Forum, both parties filed separate appeal before the State Commission. Appeal No.3766 of 2001 filed by petitioner was for enhancement, whereas Appeal No.3208 of 2001, filed by respondents was for dismissal of the complaint.

6. Vide impugned order, State Commission partly allowed the appeal of respondents and dismissed the appeal of petitioner for enhancement observing as under;

“ In view of the foregoing discussion, Appeal No.3208 of

2001 (R.B.T. No.430 of 2008) is partly allowed, the impugned order is set aside and OPs are directed to refund the amount paid by the complainant alongwith interest @ 12% per annum from the date of deposit till actual payment. OPs are also directed to pay

the complainant a sum of Rs.5,000/- as costs of litigation. They are further directed to comply with the directions within a period of 30 days from the date of receipt of certified copy of the order. Appeal No.3766 of 2001 (R.B.T. No.986 of 2008) as well as the complaint are disposed of in the aforesaid terms.”

7. This is how the matter has reached before this Commission. 8. Petitioner himself has argued it case and has also filed written arguments, whereas Shri Sanjay Singh, Advocate on behalf of the respondents has argued the matter.

9. It is an admitted fact that, vide allotment letter dated 16.1.1973, petitioner was allotted Plot No.59 measuring 250 sq. yard, instead of Plot no.103 at the tentative cost at Rs.35/- per sq. yard and on given terms and interest. Further, Agreement for Sale dated 4.2.1974, was also executed between the parties with regard to the above noted plot. Respondent, vide its letter dated 18.4.1974 had asked the petitioner to take possession and present the building plan so that construction can be started. Thereafter, vide its letter dated 31.3.1975, respondent informed the petitioner that plot in Phase-1 of Sarojini Colony had been demarcated and same can be inspected and petitioner was asked to take physical possession on 13.4.1975. Thereafter, respondent informed petitioner, vide letter dated 1.5.1979 that the lay out plan of Sarojini Colony has been sent for permission for important changes and acceptance of District Town Planner and possession will be handed over after receiving the same. It appears that thereafter till date, possession of the pot in question has not been handed over to the petitioner.

10 Since, possession of the plot was not handed over to the petitioner, he filed a complaint before the District Forum which was allowed in his favour. However, State Commission modified the order of the District Forum on the ground that since possession of the plot in question could not be handed over to the petitioner due to the litigation pending in the High Court, the order passed by District Forum with regard to allotment of plot was set aside by the State Commission.

11. As per record of the present revision petition, respondent has not filed the copy of the petition as well as order passed by the High court.

12. Be that as it may, at the time of admission of the present petition, this Commission passed the following order;

“ Dated the 20 th day of February, 2009

Learned counsel for petitioner seeks time to file affidavit within a period of

four weeks stating that subsequent to the reversion of the land to the owner in compliance with the verdict of the High Court, Yamunanagar Improvement Trust has allotted plots to a large number of applicants disregarding the claim of the petitioner. Prayer granted.

Stand over to

23.3.2009. Sd/

…..…………………………J

PRESIDING MEMBER

…..…………………………

MEMBER”

13. Accordingly, petitioner filed his affidavit dated 19.3.2009, stating as under;

“1. That the allottees of the disputed plot were given the alternative plots

in lieu of the original allotted plots and thereafter physical possession was also givenalongwith the allotment letter. Some of allotment letters are dt. 8.10.01 and 9.3.02 whose true photocopies are annexed as Annexure A-26 and A-27 and their true English translation are annexed as A-26A and A-27A and the possession letter as A-28.

2. That the opp. parties have wrongly stated that there was no alternative plot available with them.” 14. As per Annexures A-26A and 27A, these are copies of the letter of allotment dated 8.10.2001/9.3.2002, allotted to Shri Ved Prakash Ahuja and Shri Mulakh Raj Malla, respectively, allotting alternative plot to them in Sarojini Colony.

15. Thereafter, on 9.7.2009 this Commission inter alia ordered;

“ Though some affidavits were put on record by the Ld. counsel for the petitioner to impress us that similarly situated persons whose lands were reverted back to the original owners in the light of the directions contained in the order of Hon’ble High Court. We are not satisfied with the affidavit put on record for which learned counsel seeks short adjournment to file another affidavit. Fresh affidavit be filed well in advance before the scheduled date with a copy to the learned counsel for the respondent to enable him to go through the affidavit and to do the needful in the matter.” 16. On 4.8.2009, petitioner appeared in person before this Commission and stated that he is not in a position to file the proper affidavit. So, following order was passed on 4.8.2009; “Petitioner in person and also Ld. Counsel for respondent present. Petitioner states that he is not in a position to file proper affidavit as directed by the Commission as Ld. Counsel has withdrawn from the proceedings and all necessary papers are with him. On our asking as to whether he requires assistance of any other counsel to be appointed by this Commission, he shows reluctance. We on consideration of the affidavit put on record direct Ld. Counsel for respondent to verify from record about allotment of plot these persons under the said Schemes and also to file affidavit alongwith their reply.” 17. Thereafter, respondent filed affidavit dated 25.10.2010 of Shri Devender Kaushik, SDO (Civil), Chairman, Improvement Trust, Yamuna Nagar, Haryana, stating interalia; “ 5. That it is most respectfully submitted that in reply to the affidavit dt. 19.03.2009 filed by the petitioner regarding alternate allotment of the plot it is submitted that the respondent- Improvement Trust has allotted the alternative plot to the concerned allottee subject to the terms and conditions of re- allotment letter and enhancement costs.” 18. As per above affidavit of the respondent, when other allottees have been allotted alternative plots then why respondent did not allot an alternative plot to the petitioner, who as per respondent’s own case initially had been allotted a specified plot in the year 1973. Respondent cannot discriminate petitioner’s case with other allottees. Hence, the order passed by the State Commission cannot be sustained under the law and same is hereby set aside. Order passed by the District Forum stands restored. 19. Respondents are directed to allot an alternative plot to the petitioner in terms of order dated 25.7.2001 passed by the District Forum , on the same terms and conditions on which the initial plot was allotted , vide allotment letter dated 16.11.1973 and as per agreement dated 4.2.1974 executed between the parties. The alternative plot should be allotted to the petitioner within three months from today, failing which District Forum shall initiate proceedings under Section 25/27 of the Consumer Protection Act, 1986, against the respondent. 20. Now the question which arise for consideration is as to how much costs should be imposed upon the respondent for causing harassment to the petitioner for over three decades. 21. It is a well-known fact that Courts across the country are saddled with large number of cases. Public Sector Undertakings indulgences further burden them. Time and again, Courts have been expressing their displeasure at the Government/Public Sector Undertakings compulsive litigation habit but a solution to this alarming trend is a distant dream. The judiciary is now imposing costs upon Government/Public Sector Undertaking not only when it pursue cases which can be avoided but also when it forces the public to do so. 22. Public Sector Undertakings spent more money on contesting cases than the amount they might have to pay to the claimant. In addition thereto, precious time, effort and other resources go down the drain in vain. Public Sector Undertakings are possibly an apt example of being penny wise, pound-foolish. Rise in frivolous litigation is also due to the fact that Public Sector Undertakings though having large number of legal personnel under their employment, do not examine the cases properly and force poor litigants to approach the Court. 23. The Apex Court in Bikaner Urban Improvement Trust Vs. Mohan Lal 2010 CTJ 121 (Supreme Court) (CP) has made significant observations which have material bearing, namely, “4. It is a matter of concern that such frivolous and unjust litigation by Governments and statutory authorities are on the increase. Statutory Authorities exist to discharge statutory functions in public interest. They should be responsible litigants. They cannot raise frivolous and unjust objections, nor act in a callous and highhanded manner. They cannot behave like some private litigants with profiteering motives. Nor can they resort to unjust enrichment. They are expected to show remorse or regret when their officers act negligently or in an overbearing manner. When glaring wrong acts by their officers is brought to their notice, for which there is no explanation or excuse, the least that is expected is restitution/restoration to the extent possible with appropriate compensation. Their harsh attitude in regard to genuine grievances of the public and their indulgence in unwarranted litigation requires to the corrected. 5. This Court has repeatedly expressed the view that the Governments and statutory authorities should be model or ideal litigants and should not put forth false, frivolous, vexatious, technical (but unjust) contentions to obstruct the path of justice. We may refer to some of the decisions in this behalf. 5.1 In Dilbagh Rai Jarry V. Union of India, 1973 (3) SCC 554, where this Court extracted with approval, the following statement (from an earlier decision of the Kerala High Court.):

“The State, under our Constitution, undertakes economic activities in a vast and widening public sector and inevitably gets involved in disputes with private individuals. But it must be remembered that the State is no ordinary party trying to win a case against one of its own citizens by hook or by crook; for the State’s interest is to meet honest claims, vindicate a substantial defence and never to score a technical point or overreach a weaker party to avoid a just liability or secure an unfair advantage, simply because legal devices provide such an opportunity. The State is a virtuous litigant and looks with unconcern on immoral forensic successes so that if on the merits the case is weak. Government shows a willingness to settle the dispute regardless of prestige and other lesser motivations, which move private parties to fight in Court. The lay-out on litigation costs and execution time by the State and its agencies is so staggering these days because of the large amount of litigation in which it is involved that a positive and wholesome policy of cutting back on the volume of law suits by the twin methods of not being tempted into forensic showdowns where a reasonable adjustment is feasible and ever offering to extinguish a pending proceeding on just terms, giving the legal mentors of Government some initiative and authority in this behalf. I am not indulging in any judicial homily but only echoing the dynamic national policy on State litigation evolved at a Conference of Law Ministers of India way back in 1957.” 5.2 In Madras Port Trust vs. Hymanshu International by its Proprietor V. Venkatadri (Dead) by L.R.s (1979) 4 SCC, 176, held: “ 2. It is high time that Governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens. Of course, if a Government or a public authority takes up a technical plea, the Court has to decide it and if the plea is well founded, it has to be upheld by the Court, but what we feel is that such a plea should not ordinarily be taken up by a Government or a public authority, unless of course the claim is not well founded and by reason of delay in filing it, the evidence for the purpose of resisting such a claim has become unavailable.”

5.3 In a three-Judge Bench judgment of Bhag Singh & Ors.v.Union Territory of Chandigarh through LAC, Chandigarh, (1985) 3 SCC 737.

“ 3. The State Government must do what is fair and just to the citizen and should not, as far as possible, except in cases where tax or revenue is received or recovered without protest or where the State Government would otherwise be irretrievably be prejudiced, take up a technical plea to defeat the legitimate and just claim of the citizen.” 6. Unwarranted litigation by Governments and statutory authorities basically stem from the two general baseless assumptions by their officers. They are:

(i) All claims against the Government/statutory authorities should be viewed as illegal and should be resisted and fought up to the highest Court of the land. (ii) If taking a decision on an issued could be avoided, then it is prudent not to decide the issue and let the aggrieved party approach the Court andsecure a decision. The reluctance to take decisions, or tendency to challenge all orders against them, is not the policy of the Governments or statutory authorities, but is attributable to some officers who are responsible for taking decisions and/or officers-in-charge of litigation. Their reluctance arises from an instinctive tendency to protect themselves against any future accusations of wrong decision making, or worse, of improper motives for any decision- making. Unless their insecurity and fear is addressed, officers will continue to pass on the responsibility of decision making to Courts and Tribunals. The Central Government is now attempting to deal with this issue by formulating realistic and practical norms for defending cases filed against the Government and for filing appeals and revisions against adverse decisions, thereby, eliminating unnecessary litigation. But, it is not sufficient if the Central Government alone undertakes such an exercise. The State Governments and the statutory authorities, who have more litigations than the Central Government, should also make genuine efforts to eliminate unnecessary litigation. Vexatious and unnecessary litigation have been clogging the wheels of justice, for too long making it difficult for courts and Tribunals to provide easy and speedy access to justice tobonafide and needy litigants. 7. In this case, what is granted by the State Commission is the minimum relief in the facts and circumstances, that is to direct allotment of an alternative plot with a nominal compensation of Rs.5,000/- . But instead of remedying the wrong, by complying with the decision of the Consumer Fora, the Improvement Trust is trying to brazen out its illegal act by contending that the allottee should have protested when it illegally laid the road in his plot. It has persisted with its unreasonable and unjust stand by indulging in unnecessary litigation by approaching the National Commission and then this Court. The Trust should sensitize its officers to serve the public rather than justify their dictatorial acts. It should avoid such an unnecessary litigation.”

24. In Ravinder Kaur Vs. Ashok Kumar, AIR 2004 SC 904, Apex Court observed: “ Courts of law should be careful enough to see through such diabolical plans of the judgment debtor to deny the decree holders the fruits of the decree obtained by them. These type of errors on the part of the judicial forum only encourage frivolous and cantankerous litigations causing law’s delay and bringing bad name to the judicial system.”

25. Thus, keeping in view the facts and circumstances of the case, present revision petition is allowed with cost of Rs.25,000/- (Rupees Twenty Five Thousand only). Respondent is directed to deposit the cost by way of demand in the name of petitioner with this Commission, within eight weeks from today. The cost shall be paid to the petitioner only after expiry of period of appeal/revision preferred if any. 26. Meanwhile, respondent shall recover the cost amount from the salaries of the delinquent officers who had been pursuing this meritless and frivolous litigation with the sole aim of wasting the public exchequer. Affidavit giving details of the officials from whose salary the said costs has been recovered, be also filed within eight weeks. 27. List for compliance on 22.2.2013. ………….…………J

(V.B. GUPTA)

PRESIDING MEMBER

Sg/ NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 530 OF 2011 along with (I.A. No. 1 of 2011) For Stay)

(From the order dated 11.11.2011 in Consumer Complaint No. 113 of 2010 of the State Commission, Andhra Pradesh )

M/s Sai Arvind Property Developers (Builders) A Partnership firm having its office At Ground floor, Jewel Residency, Teacher’s Colony, East Marredpally Secunderabad- 500026, Represented by its Managing Partner Sri Gudimetla Kota Naasimha Rao, S/o Late Kotilingam, R/o Flat No. 2-B2, Jagruthi Residency, Road No. 10, East Marredpally, Secunderabad-500026.

…… APPELLANT

Versus.

1. Sri Koduru Subba Reddy S/o Late Sri K. Venku Reddy, R/o House No. TI, Plot No. 85, Varasiddhi, Nivas, Road No. 11, Film Nagar, Jubilee Hills, Hyderabad, A.P.

2. Sri Mamidi Janardhan Reddy( Land Owner-1) S/o Sri Yadi Reddy, R/o Plot No. 21, Jupiter Colony, Tirumalgherry, -500015.

3, Smt. Mamidi Parasanna, ( Land Owner-2) R/o Plot No. 21, Jupiter Colony, Tirumalgherry, Secunderabad-500015 Represented by her Irrecoverable General Power of Attorney Holder, Sri Mamidi Janardhan Reddy, S/o Yadi Reddy, R/o Plot No. 21, Jupiter Colony, Tirumalgherry, Secunderabad-500015, Vide G.P.A. Document No. 57/2006 Dated 03.06.2006 Registered At S. R. O., Shamshabad, Ranga Reddy Distt.

……RESPONDENTS

FIRST APPEAL NO. 531 OF 2011 (From the order dated 11.11.2011 in Consumer Complaint No. 114 of 2010 of the State Commission, Andhra Pradesh )

M/s Sai Arvind Property Developers (Builders) A Partnership firm having its office at Ground floor, Jewel Residency, Teacher’s Colony, East Marredpally Secunderabad- 500026, Represented by its Managing Partner Sri Gudimetla Kota Naasimha Rao, S/o Late Kotilingam, R/o Flat No. 2-B2, Jagruthi Residency, Road No. 10, East Marredpally, Secunderabad-500026.

…… APPELLANT

Versus.

1. Sri Burla Ravindra Reddy S/o Late Sri Balakrishna Reddy, R/o House at Directors’ Quarters, Near Kalyan Nagar Junction, Kalyan Nagar, Hyderbad-500045, A.P.

2. Sri Mamidi Janardhan Reddy( Land Owner-1) S/o Sri Yadi Reddy, R/o Plot No. 21, Jupiter Colony, Tirumalgherry, -500015.

3. Smt. Mamidi Parasanna, ( Land Owner-2) R/o Plot No. 21, Jupiter Colony, Tirumalgherry, Secunderabad-500015 Represented by her Irrecoverable General Power of Attorney Holder, Sri Mamidi Janardhan Reddy, S/o Yadi Reddy, R/o Plot No. 21, Jupiter Colony, Tirumalgherry, Secunderabad-500015, Vide G.P.A. Document No. 57/2006 Dated 03.06.2006 Registered at S. R. O., Shamshabad, Ranga Reddy Distt.

……RESPONDENTS

FIRST APPEAL NO. 23 OF 2012 along with (I/A No. 1 of 2012) (Condonation of Delay) (From the order dated 11.11.2011 in Consumer Complaint No. 113 of 2010 of the State Commission, Andhra Pradesh )

Sri Koduru Subba Reddy, S/o Late Sri K. Venku Reddy, Aged: 63 years, R/o House No. TI, Plot No. 85, Varasiddhi Nivas, Road No. 11, Film Nagar, Jubilee Hills, Hyderabad, A.P.

….. Appellant.

Versus

1. Sri Mamidi Janardhan Reddy, ( “ Land Owner-1”) S/o Sri Yadi Reddy, Aged 44 Years, Resident of Plot No. 21, Jupiter Colony, Tirumalgherry, Secunderabad-500015

2. Smt. Mamidi Parasanna, ( Land Owner 2” ) W/o. Sri Reddy, Aged: 38 years, resident of Plot No. 21, Jupiter Colony, Tirumalgherry, Secunderabad-500015 Rep. by her Irrecoverable General Power of Attorney Holder, Sri Mamidi Janardhan Reddy, S/o Yadi Reddy, Aged: 44 Years, Resident of Plot No. 21, Jupiter Colony, Tirumalgherry, Secunderabad-500015 Vide G.P.A. Document No. 57/2006 dated 03.06.2006 Registered at S. R. O., Shamshabad, Ranga Reddy District.

3. M/s Sai Arvind Property Developers, (“Builders”) A Partnership firm having its office at Ground floor, Jewel Residency, Teacher’ Colony, East Marredpally,Secunderabad-500026, Rep. by its Managing Partner Sri Gudimetla Kota Rao, S/o Late Kotilingam, Aged: 63 years, Resident of Flat No. 2-B2, Jagruthi Residency, Road No. 10, East Marredpally, Secunderabad-500026.

…Respondents FIRST APPEAL NO. 24 OF 2012 along with (I/A No. 1 of 2012) (Condonation of Delay) (From the order dated 11.11.2011 in Consumer Complaint No. 114 of 2010 of the State Commission, Andhra Pradesh )

Sri Burla Ravindra Reddy, S/o. Late Sri. Balakrishna Reddy, Aged : 63 years, R/o. Directors’ Quarters, Kalyan Nagar, Hyderbad.

…… Appellant/s

Versus.

1. Sri Mamidi Janardhan Reddy, ( “ Land Owner-1”) S/o Sri Yadi Reddy, Aged: 44 Years, Resident of Plot no. 21, Jupiter Colony, Tirumalgherry, Secunderabad-500015.

2. Smt. Mamidi Parasanna, ( Land Owner 2” ) W/o. Sri Mamidi Janardhan Reddy, Aged: 38 years, resident of Plot No. 21, Jupiter Colony, Tirumalgherry, Secunderabad- 500015 Rep. by her Irrecoverable General Power of Attorney Holder, Sri Mamidi Janardhan Reddy, S/o Yadi Reddy, Aged: 44 Years, Resident of Plot No. 21, Jupiter Colony, Tirumalgherry, Secunderabad-500015 Vide G.P.A. Document No. 57/2006 dated 03.06.2006 Registered at S. R. O., Shamshabad, Ranga Reddy District.

3. M/s Sai Arvind Property Developers, (“Builders”) A Partnership firm having its office at Ground floor, Jewel Residency, Teacher’ Colony, East Marredpally,Secunderabad-500026, Rep. by its Managing Partner Sri Gudimetla Kota Naasimha Rao, S/o Late Kotilingam, Aged: 63 years, Resident of Flat No. 2-B2, Jagruthi Residency, Road No. 10, East Marredpally, Secunderabad-500026.

…Respondents

BEFORE:

HON’BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER

HON’BLE MR. VINAY KUMAR, MEMBER.

For the Appellant (s): Mr. Manish Pitale, Advocate

in F.A. No. (530 & 531 of 2011).

Mr. K. Maruti Rao and Mrs. K. Radha,

Advocates in F.A. No. (23 & 24 of 2012)

For the Respondent(s) : Mr. K. Maruti Rao and Mrs. K. Radha, Advocates in F.A. No.(530 & 531 of 2011).

Mr. Manish Pitale, Advocate

in F.A. No. (23 & 24 of 2012)

Pronounced on: 07 th May, 2012.

Complaint Cases ( No. 113 and 114 of 2010 ) were filed by complainants-Sri Koduru Subba Reddy and Sri Burla Ravindra Reddy, respectively against builder- M/s Sai Arvind Property Developers(Builders) as well as land-owners- Sri Mamidi Janardhan Reddy and Smt. Mamidi Parasanna, respectively on the allegations that complainants invested about Rs. 35 lakh each, towards purchase of independent houses costing Rs. 80 lakh each. However, their dream were shattered due to incompetence of the builder as well as land owners, since there was deficiency on their part, in completing the houses. Accordingly, complainants filed complaints before Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad ( for short as ‘ State Commission’ ). 2. The complaints were resisted by the builder as well as land owners . 3. State Commission, vide impugned order dated 11.11.2011, partly allowed the complaints, and following order was passed; C.C. No. 113/2010 In the result this complaint is allowed in part directing opposite party No. 3 to refund the amount of Rs. 34,20,000/ paid by the complainant together with the interest at 9% p.a. from 08.10.2009 together with compensation of Rs. 10,000/- and costs of Rs. 5,000/-. Case against opposite parties No. 1 and 2 is dismissal as we do not see any deficiency in service on their behalf as opposite parties are land owners and the complainant did not establish by way of documentary evidence that they have received payments with respect to H. No. 297.

C.C. No. 114/2010 For the same reasons as stated in C.C. No. 114/2010, this complaint is allowed in part directing opposite party No. 3 to refund the amount of Rs. 35,00,000/- paid by the complainant together with the interest at 9% p.a. from 8.10.2009 together with compensation of Rs. 10,000/- and costs of Rs. 5,000/-. Case against opposite parties 1 and 2 is dismissed as we do not see any deficiency in service on their behalf as opposite parties are land owners and the complainant did not establish by way of any documentary evidence that they have received payments with respect to H. No. 296”.

4. Aggrieved by the impugned order, builders filed (First Appeal Nos. 530 and 531of 2011), while complainants filed (First Appeal Nos. 23 and 24 of 2012) for enhancement. 5. Along with their appeals, complainants filed applications for condonation of delay. 6. Since, there is delay of about 25 days in filing of the appeals, for the reasons mentioned in the applications, delay stands condoned 7. It has been contended by learned counsel for the builder that complaints are not maintainable since complainants themselves have defaulted in making the payments. Therefore, they derailed the entire project of the builder. The construction of the houses booked by the complainants and the developments of the entire work, were inter linked with regular payments, as per agreed schedule of the payment between the parties. Both complainants committed default at the very initial stage in respect of the agreement. 8. Insptie thereof, the builder continued with further stages of construction in the belief that complainants would make good their default. However, in order to over come their own defaults, complainants filed the complaints before the State Commission. 9. It is further contended that State Commission completely ignored the fact that it were the complainants, who are defaulters. Thus. there has been no deficiency on the part of builder. 10. On the other hand, learned counsel for complainants has contended that builder has failed to complete the constructions as per schedule. No complete amenities as per agreement executed between the parties were provided. 11. Other contention is that State Commission ought to have granted interest from the dates of respective payments, that is, with effect from 25.2.2008, 13.03.2008, 4.5.2008, 13.05.2008 and 12.06.2008, instead from 8.10.2009. Moreover, State Commission ought to have granted interest @ 18% p.a., instead of 9% p.a. since complainants arranged the funds from private sources. 12. Lastly, it is contended that only meager compensation of Rs. 10,000/- has been granted. As per agreement, construction was to be completed by 13.02.2009 and if there has been delay in handing over the possession of the houses, then builder had to compensate the complainants @ Rs.10,000/- per month. 13. The points which arises for consideration are, as to whether there has been any deficiency in service on the part of the builder and if so, to what relief the complainants are entitled. 14. Case of complainants is that, after having received major portion of the amount, builder has failed to complete the construction within the specified period. Moreover, due to deficient act on the part of the builder, complainants have been deprived of their houses before the scheduled date. 15. Builder in its written statement admits that construction work had to temporarily stopped and he is ready to perform his part of the share. Specific averments to the effect have been made in Para 14 of the written statement, which state; “14. The Opposite Party further states that due to depletion in market and Telangana Agitation, the real estate business has fallen drastically. So the Opp. Party No. 3 explained the situation to all the members including the Complainant and temporarily stopped the work and are waiting for the restoration of the circumstances. If the performance of a promise becomes impossible for any reason which the promisor could not prevent, after the contract is made, the contract becomes void when the act becomes impossible. At this juncture also the Opp. Party No. 3 is ready to perform their part of the share on a moral ground and requested all the members for the accumulation of money along with restoration of favourable situation ”. 16. Thus, as per builder own case, there is a delay on his part to complete the construction of the houses. 17. Further, Clause 4 of the third agreement of sale-cum-construction, Ex. A-7 executed between the parties, reads as under; “ The Builders ought to have completed the construction of the said house and delivered possession of the same on or before 13 February, 2009, with a grace time of three months beyond the said stipulated period of completion. In the event of delay, on the part of the Builders in constructing and delivering the possession of the houses, the Builders shall be liable to pay to the Vendee an amount of Rs. 10,000/- (Rupees Ten Thousand only) per month as rent. Any such amount to be payable shall be adjusted at the time fo handing over possession of the House”. 17. There is nothing on record to show that even till the filing of the complaints, builder had completed the work of electrification, water supply and sanitary. 18. State Commission in its impugned order observed; “ It is an admitted fact that the builder stopped the work due to economic crises and non receipt of payments from the purchasers, it is also to be considered that the complainant has paid Rs. 34.20 lakhs way back in 2008 itself but the builder did not progress with the construction. Even Ex. A9, valuation report, by a chartered engineer states that the construction cost is only Rs. 22,42,000/-. It is an admitted fact that the complainant paid an amount of Rs. 34,20,000/- by 12- 06-2008 for House No. 297 and till the date of filing of the complaint i.e. 01.11.2010 as per the complainant’s affidavit, the opposite parties did not develop the layout and did not complete construction of the said house. Therefore, we are of the considered view that there is deficiency in service on behalf of the opposite party No. 3 builder in receiving payments by 12-06-2008 itself and not adhering to terms of the agreement with respect to delivery of the possession of the said house and therefore we are of the considered view that clause 12 of Ex. A7 agreement dated 08.10.2009, reads as follows: 12. The VENDEE, at any time during this Agreement & prior to registration reserves his right to withdraw and cancel this agreement, whereupon all the money received by the Builders shall be repaid within one month thereof” 20. Since, deficiency in this case on the part of builder is writ large as builder himself has admitted that construction work had to be stopped and as such possession could not be handed over to the complainants within time, we do not find any infirmity and illegality in the impugned order of the State Commission. 21, Consequently, (Appeals No. 530 and 531 of 2011) filed on behalf of the builder, are not maintainable and the same are hereby dismissed. 22. Now coming to (Appeals No. 23 and 24 of 2012), filed on behalf of the complainants, we find nothing wrong with regard to interest as awarded @ 9% p.a. by the State Commission. We do not find any reason to enhance the interest rate to18% p.a. 23. However, we hold that builder is liable to pay interest on the amount paid by the complainants from the dates of respective payments, that is, 25.2.2008, 13.3.2008, 4.5.2008, 13.5.2008 and 12.06.2008 instead from 8.10.2009. 24. As far as amount of compensation is concerned, in view of clause 4 of the Agreement of Sale-cum-Construction Ex. A7, we are of the view that complainants are entitled to compensation of Rs. 50,000/- each, instead of Rs. 10,000/-, as awarded by the State Commission. 25. With above modifications ( Appeal Nos. 23 and 24 of 2012) filed on behalf of the complainants stand allowed. Final Order:-

(i) Appeal Nos. 530 and 531 of 2011, filed on behalf of the builder, stand dismissed.

(ii) Appeal Nos. 23 and 24 of 2012, filed on behalf of the complainants are partly allowed. No order as to costs. ………………………….J

(V.B.GUPTA)

PRESIDING MEMBER

…………………………..

( VINAY KUMAR)

MEMBER

SSB NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

(1) REVISION PETITION NO. 3117 OF 2012 (From the order dated 28-05-2012 in Appeal No. 964 to 998/2011 of the State Commission, Haryana)

Cosmos Infra Engineering India Ltd. (Previously known as Cosmos Builders & Promoters Ltd.) … Petitioner (s) Versus Sameer Saksena … Respondent (s)

(2) REVISION PETITION NO. 3247 OF 2012 WITH I.A./1/2012(For stay) (From the order dated 28-05-2012 in Appeal No. 964 to 998/2011 of the State Commission, Haryana)

Cosmos Infra Engineering India Ltd. (Previously known as Cosmos Builders & Promoters Ltd.) … Petitioner (s) Versus Shalu Sharma & Anr. … Respondent (s) (3) REVISION PETITION NO. 3248 OF 2012 WITH I.A./1/2012(For stay) (From the order dated 28-05-2012 in Appeal No. 964 to 998/2011 of the State Commission, Haryana)

Cosmos Infra Engineering India Ltd. (Previously known as Cosmos Builders & Promoters Ltd.) … Petitioner (s) Versus Bimla Kapoor & Anr. … Respondent (s) (4) REVISION PETITION NO. 3249 OF 2012 WITH I.A./1/2012(For stay) (From the order dated 28-05-2012 in Appeal No. 964 to 998/2011 of the State Commission, Haryana)

Cosmos Infra Engineering India Ltd. (Previously known as Cosmos Builders & Promoters Ltd.) … Petitioner (s) Versus Kuldeep Sharma … Respondent (s) - 2 -

Cosmos Infra Engineering India Ltd. (Previously known as Cosmos Builders & Promoters Ltd.) … Petitioner (s) Versus Shampa Chakraborty & Anr. … Respondent (s) (6) REVISION PETITION NO. 3251 OF 2012 WITH I.A./1/2012(For stay) (From the order dated 28-05-2012 in Appeal No. 964 to 998/2011 of the State Commission, Haryana)

Cosmos Infra Engineering India Ltd. (Previously known as Cosmos Builders & Promoters Ltd.) … Petitioner (s) Versus Sonu Jain & Anr. … Respondent (s) (7) REVISION PETITION NO. 3252 OF 2012 WITH I.A./1/2012(For stay) (From the order dated 28-05-2012 in Appeal No. 964 to 998/2011 of the State Commission, Haryana)

Cosmos Infra Engineering India Ltd. (Previously known as Cosmos Builders & Promoters Ltd.) … Petitioner (s) Versus Sarita Arora & Anr. … Respondent (s) (8) REVISION PETITION NO. 3253 OF 2012 WITH I.A./1/2012(For stay) (From the order dated 28-05-2012 in Appeal No. 964 to 998/2011 of the State Commission, Haryana)

Cosmos Infra Engineering India Ltd. (Previously known as Cosmos Builders & Promoters Ltd.) … Petitioner (s) Versus Amitabh Sehdev … Respondent (s)

Cosmos Infra Engineering India Ltd. (Previously known as Cosmos Builders & Promoters Ltd.) … Petitioner (s) Versus Alka Vishnu … Respondent (s)

BEFORE:

For the Petitioner (s) : Ms. Vandana Bhatnagar, Advocate

Pronounced on: 12 th December , 2012

ORDER Being aggrieved by common order dated 28.5.2012, passed by Haryana State Consumer Disputes Redressal Commission, Panchkula (for short, ‘State Commission’),petitioner/opposite party has filed these revision petitions.

2. Brief facts are that respondents/complainants booked respective flats in Cosmos Executive Floors, Palam Vihar, Gurgaon. Respondents executed agreement dated 2nd June 2005, with the petitioner. The construction was to be done as per terms, conditions and specification as per agreement. The possession was to be delivered in September, 2006. However, permissive possession was given to the respondents. After taking possession respondents found the changed site plan as against the plan supplied. Moreover, flats were found to be of sub standard material and not according to the specifications. There were several deficiencies and flaws in the flats which caused great harassment, mental agony and financial loss to the respondents. It is alleged that petitioner has adopted unfair trade practice. Accordingly, respondents claimed compensation and damages for harassment, mental agony etc. and penalty for delayed possession.

3. Petitioner failed to file any reply before the District Consumer Disputes Reddresal Forum, Gurgaon (for short, ‘District Forum’). Accordingly, defence of the petitioner was struck off by the District Forum on 14.9.2009.

4. After hearing the parties and after appraising the material on record, District Forum, vide order dated 25.5.2011, dismissed the complaints being not maintainable on the ground of territorial jurisdiction. District Forum gave liberty to the respondents to fresh complaint in a Competent Court of Jurisdiction.

5. Respondents challenged the order of District Forum before the State Commission. Vide its order dated 26.7.2011, State Commission set aside the order of the District Forum and remanded back the case to the District Forum to re-decide the same after following due procedure in accordance with law.

6. Petitioner aggrieved by order dated 26.7.2011, filed (Revision Petitions No.3196- 3230 of 2011) before this Commission. 7. Since order dated 26.7.2011 was passed by the State Commission without giving any notice and without hearing the petitioner, this Commission vide its order dated 5.3.2012 set aside that order and accepted the revisions of the petitioner. The matter was remanded to the State Commission to decide it afresh, in accordance with law, after giving opportunities to both the parties.

8. State Commission after hearing the learned counsel for the parties, vide impugned order set aside the order of the District Forum. It remitted back the cases to the District Forum, to re-decide it in accordance with law.

9. Hence, the present revision.

10. I have heard the learned counsel for the petitioner and gone through the record.

11. It is contended by learned counsel for the petitioner that once agreement duly signed as per Clause No.33 of the Floor Buyer’s Agreement, has been executed between the parties, then the jurisdiction lies with Delhi Courts only. Therefore, complaints filed by the respondents before the District Forum, Gurgaon are not maintainable. Further, the registered office of the petitioner is located at Delhi and petitioner works at New Delhi only. Moreover, petitioner is not having any office or branch office located at Haryana. Hence, jurisdiction could be conferred only at Delhi Courts.

12. The basic question which arises for consideration as to whether Delhi Forum alone has jurisdiction or respondents could have sought the jurisdiction of District Forum, Gurgaon, also.

13. Clause No.33 of the Floor Buyer’s Agreement read as under;

“33. That all disputes or differences arising between the Seller and the

Purchaser in respect of any matter concerning this Flat Buyers Agreement shall be settled amicably between the parties failing

which the same shall be referred for Arbitration to be adjudicated by a sole arbitrator, to be appointed by the seller and the venue for arbitration shall be at New Delhi the language of conducting the proceedings shall be English. The arbitration shall be held in accordance with the provisions of Arbitration and Conciliation Act, 1996 or any statutory modification or enactments thereof for the time being in force. The courts at Delhi/New Delhi alone shall have jurisdiction to try and adjudicate upon any dispute between the parties”.

14. Relevant provision of Consumer Protection Act, 1986 (for short, ‘Act’) which deals with the Jurisdiction of District Forum is Section 11 of the Act and it states;

“ 11. Jurisdiction of the District Forum-(1) Subject to the other

provisions of this Act, the District Forum shall have jurisdiction to entertain complaints, where the value of the goods or services and the compensation, if any, claimed [does not exceed rupees twenty lakhs].

(2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction:-

(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or [carries on business or has a branch office or] personally works for gain, or

(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or [carries on business or has a branch office], or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or [carry on business or have a branch office], or personally work for gain, as the case may be, acquiesce in such institution; or

(c) the cause of action, wholly or in part, arises."

15. State Commission in its impugned order observed;

”It is not disputed that immoveable property in question is located at

Gurgaon, therefore, District Forum, Gurgaon cannot throw its liability upon the Courts at Delhi by taking the shelter of clause No.33 of the agreement because it is well settled proposition of law that by mentioning any specific condition in the agreement one party cannot take the benefit of territorial jurisdiction of the courts of their own choice when the jurisdiction is otherwise vested in the District Forum at Gurgaon. Even otherwise, the District Forum has itself given contradictory findings. On the one side, it has observed that Gurgaon Forum has no territorial jurisdiction, however, on the other hand it has shifted the liability upon the Civil Court. Out of two places of territorial jurisdiction, parties can choose one, but cannot create the jurisdiction upon a court of their own choice by entering into an agreement, which otherwise has no jurisdiction.”

16. Though, as per Clause no.33 of the Floor Buyer’s Agreement executed between the parties, only Delhi Courts have the jurisdiction. However, the Floor Buyer’s Agreement, cannot be read in isolation. It has to be read as whole. Other relevant clauses of this agreement are quoted hereunder;

“ Clause No.18. That the Purchaser agrees and undertakes to abide by all

laws, rule and regulations relating to Haryana Apartment Ownership Act, 1983 Haryana Urban Development Authority Town & Country Planning Department or any other statutory provisions as may be made applicable from time to time on the said land and for any breach thereof the purchaser shall be solely and exclusively responsible.

39. That the Purchaser shall abide by all the laws, byelaws, rules and regulations of Town & Country Planning Haryana/HUDA/Local bodies or any other concerned authorities and shall be solely responsible for any breach thereof.

43. That the Front & Rear Lawn on Ground Floor shall be the exclusive property of the Ground Floor Flat Owner(s), while the top terrace above Second Floor of the building shall be exclusive property of the Second Floor Owner(s), who shall

have no right to raise construction of any kind whatsoever without prior approval from the Haryana Govt. of competent Authority in these portions.

44. That the house tax shall be payable by the Purchaser for the said Unit/Flat, to the Haryana Municipal Committee with effect from the date on which the liability of paying the house tax is fixed by the authorities for newly constructed building. However, if the assessment of the property tax is not made separately for each Unit/Flat and a consolidated demand is made by the authorities, then in that event each Purchaser shall pay proportionate share to the Seller on the basis of the area of the Unit/Flat purchased. If however the said Unit/Flat remains vacant, it shall be the responsibility of the Purchaser to take action to inform the authorities concerned in accordance with the provisions of Law and shall keep the Seller

indemnified for all the charges levied by any authorities on the Seller.”

17. Thus, as per above clauses of the agreement, it is manifestly clear that if respondents have to enforce the agreement, then only Courts at Gurgaon would have the jurisdiction.

18. It is well settled principle of law that where a relief is claimed in respect of compensation for wrong to, immoveable property situated within jurisdiction of different Courts, the suit may be instituted in any court within the local limits of whose jurisdiction any portion of the property is situated.

19. Property in these cases, that is, floors in Cosmos Executive Floors, Palam Vihar are situated in Gurgaon. Since these floors have been constructed in Gurgaon only, it clearly shows that petitioner is “working for gain” at Gurgaon only.

20. Thus, no jurisdiction or legal error has been shown to call for interference in the exercise of power under section 21 (b) of the Act, since State Commission in its order has given cogent reasons which does not call for any interference nor it suffer from any infirmity or revisional exercise of jurisdiction.

21. Under these circumstances, Gurgaon District Forum has got the jurisdiction to try the complaints of the respondents. Thus, I do not find any ambiguity or illegality in the impugned order.

22. Accordingly, present revision petitions being without any legal basis, are hereby dismissed with cost of Rs.5,000/- (Rupees Five Thousand Only) each. 23. Petitioner is directed to deposit the total cost of Rs.45,000/- (Rupees Forty Five

Thousand only), by way of demand draft with ‘Consumer Legal Aid Account’ of this

Commission, within eight weeks.

24. In case, petitioner fails to deposit the aforesaid cost within the prescribed period, then it shall also be liable to pay interest @ 9% p.a., till realization.

25. Pending application stands disposed of.

26 List on 22.2.2013 for compliance.

.…..…………………………J

(V.B. GUPTA)

PRESIDING MEMBER Sg/ NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 274 OF 2012 (From the order dated 24.05.2011 in Appeal No.2341/08 of the U.P. State Consumer Disputes Redressal Commission, Lucknow)

U.P. State Industrial Development Corporation (UPSIDC) Having its Head office, A- 1/4, Lakhanpur, Post Box No.105, Kanpur , U.P. Through its Project Officer, Tronica City Administrative Office, Sector B-3, Tronica City, Ghaziabad (U.P.)

… Petitioner/OP

Versus

Smt. Shyama Rani W/o Sh. Ajay Kumar, R/o 2205/4, Chuna Mandi, Paharganj, New Delhi

… Respondent/Complainant

BEFORE

HON’BLE MR. JUSTICE K.S. CHAUDHARI, MEMBER

For the Petitioner : Mr. Rajesh Raina, Advocate

For the Respondent : Smt.Shyama Rani, In person

PRONOUNCED ON 14 th January, 2013

O R D E R

PER JUSTICE K.S. CHAUDHARI, MEMBER

This revision petition has been filed by the petitioner against the impugned order dated 24.5.2011 passed by the U.P. State Consumer

Disputes Redressal Commission, Lucknow (in short, ‘the State Commission’) in Appeal

No. 2341 of 2008 – Smt. Shyama Rani Vs. Uttar

Pradesh Rajya Audhyogik Vikas Nigam Ltd. by which order of District Forum was set aside and complaint was allowed and petitioner/OP was directed to allot industrial plot of 500 sq. mt. or smaller size to the complainant/OP. 2. Brief facts of the case are that complainant applied for an industrial plot measuring 500 sq. mt. and deposited a sum of Rs.1,22,500/- as the price of the industrial plot with petitioner/opposite party. Opposite party allotted plot of 600 sq. mt. instead of 500 sq. mt. and asked complainant to make payment of plot at escalated rate i.e. at the rate of Rs.1150/- per sq. mt. instead of Rs.935/- per sq. mt. Complainant requested opposite party vide letter dated 17.1.2001 that due to financial problem plot of smaller size measuring 450 sq. mt.may be allotted otherwise plot be treated as surrendered. Complainant again vide letter dated 19.2.2001 requested for allotment of plot measuring 450 sq. mt. otherwise cancel allotment and refund money. In pursuance to the aforesaid letters, opposite party refunded money as allotment of smaller size of industrial plot was not possible. Complainant again wrote a letter in October, 2006 and submitted that smaller size of plot was available, but intentionally complainant’s plot has been cancelled, hence, again requested to allot either original plot of 600 sq. mt. or plot of 400 to 450 sq. mts. at current rate which application was rejected vide letter dated 22.11.2006 by opposite party, hence, complainant filed complaint before the District Forum. Opposite party filed written statement and submitted that complainant is not covered under the Consumer

Protection Act and further submitted that as per request of the complainant allotment has been withdrawn and money has been refunded, hence, complaint may be dismissed. Learned District Forum vide its order dated 12.11.2008 dismissed complaint against which this revision petition has been filed.

3. Heard learned Counsel for the petitioner and respondent in person and perused record.

4. It is an admitted case that complainant applied for an industrial plot measuring

500 sq. mt and deposited money and opposite party allotted industrial plot measuring

600 sq. mt. This fact is not disputed that complainant vide letter dated 17.1.2001 requested for allotment of plot measuring 450 sq. mt. instead of 600 sq. mt. and in the alternate requested for treating this allotment as surrendered. Again vide letter dated

19.1.2001 complainant requested for allotment of plot measuring 450 sq. mt. instead of

600 sq. mt and further requested that either industrial plot of 450 sq. mt. be allotted or allotment of 600 sq. mt. plot be cancelled and money may be refunded and in pursuance to this letter money has been refunded to complainant by opposite party on

5.3.2001.

5. Later on vide letter of October, 2006, complainant again requested for the allotment of industrial plot of 600 sq. mt. or other plot of 400 to 450 sq. mt. at current rate which was rejected by opposite party.

6. Learned Counsel for the petitioner submitted that as complainant had surrendered the plot and money was refunded to him complainant does not fall within the purview of consumer. He further argued that as the plot was industrial, complainant does not fall within the purview of Consumer Protection Act and further submitted that complaint is time barred as money was refunded in 2001 whereas complaint has been filed in 2007 and in such circumstance, learned State Commission has committed error in allowing appeal and complaint, hence, revision petition may be accepted and order of

State Commission may be set aside. On the other hand, learned respondent submitted that petitioner has cheated with the respondent and has not allotted industrial plot of similar size as requested though plots of smaller size were available and in such circumstance order passed by learned State Commission is not in accordance with law , hence, revision petition may be dismissed.

7. It is admitted case that complainant vide its two letters referred to above surrendered industrial plot of 600 sq. mt and requested for refund of money and as petitioner had already withdrawn allotment and refunded money in 2001, complainant does not fall within the purview of C.P. Act. As refund was made in 2001 and complaint has been filed in 2007 on the ground of cheating, etc., complaint is clearly time barred and no application under section 24A has been filed along with the complaint and in such circumstances, as complaint being time barred could not have been entertained by the District Forum and learned State Commission has committed error in allowing time barred complaint.

8. Complainant/respondent was allotted industrial plot. Complainant has nowhere mentioned in the complaint that complainant prayed for allotment of industrial plot for earning her livelihood by means of self-employment and in such circumstances, complainant does not fall within the purview of consumer under Section 2 (d) of the C.P.

Act and on this count also complaint was liable to be dismissed and learned State

Commission has committed error in allowing complaint.

9. Consequently, revision petition filed by the petitioner against the respondent is allowed and impugned order dated 24.5.2011 passed by learned State Commission is set aside and order of District Forum is upheld. There shall be no order as to costs. ..……………Sd/-……………

( V.B. GUPTA, J)

PRESIDING MEMBER

..……………Sd/-………………

( K.S. CHAUDHARI, J)

MEMBER k NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 1614 OF 2012 (From the Order dated 17.11.2011 in Appeal No. 269/2011 of Maharashtra State Consumer Disputes Redressal Commission, Mumbai, Circuit Bench at Aurangabad)

Shri Vijay Maruti Dhandwade R/o Behind Hotel Maujam Professor Colony Chowk Savedi, Ahmednagar Maharashtra Petitioner

Versus

Shilpa Prabhakar Rawas R/o Balikashram Road Shinde Mala, Ahmednagar Maharashtra Respondent

BEFORE: HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER HON’BLE MR. SURESH CHANDRA, MEMBER

For the Petitioner : Mr. Yatin M. Jagtap, Advocate

Pronounced on : 14 th January, 2013 PER SURESH CHANDRA, MEMBER

There is a delay of 18 days in filing this revision petition. For the reasons submitted in the application filed by the petitioner for condonation of delay, the delay is condoned.

2. This revision petition challenges the order dated 17.11.2011 passed by the State Consumer Disputes Redressal Commission, Mumbai, Circuit Bench Aurangabad (‘State Commission’ for short) by which the State Commission dismissed appeal No.269 of 2011 in complaint case No.151 of 2010 filed by the petitioner and upheld the order dated 7.4.2011 passed by the District Consumer Forum, Ahmednagar.

3. Briefly stated, petitioner herein was the opposite party before the District Forum and the respondent was the original complainant. The complainant/respondent agreed to purchase one family unit No.201 in the building called “Vyankatesh Heights” from the petitioner. An agreement was entered into between the petitioner and the respondent on 10.3.2006 for a total consideration of Rs.3,80,000/-. While an amount of Rs.80,000/- was paid by the respondent to the petitioner on 10.3.2006, for the remaining amount, the respondent availed of loan from the HDFC Bank,Ahmednagar. The HDFC Bank is stated to have sanctioned the loan on 16.3.2006 and in pursuance thereof issued cheque of Rs.1,75,000/- and later another cheque of Rs.1,00,000/- on 12.5.2006. Both the amounts were received by the petitioner. Thereafter, the respondent is stated to have paid Rs.20,000/- on 1.6.2006 and an amount of Rs.9500/- on 9.6.2006 thereby completing the payment of entire consideration in respect of the flat. Even after receipt of the total consideration, the petitioner did not handover the possession of the flat and kept certain works incomplete like light fitting, colouring, plumbing, etc. In view of this, the respondent filed a consumer complaint before the District Forum. The petitioner appeared before the District Forum and resisted the complaint. He denied any transaction for the purchase of said flat. However, he admitted having received an amount of Rs.1,75,000/- on 16.3.2006 and Rs.1,00,000/- on 12.5.2006. It was submitted by the petitioner before the District Forum that since the husband of the respondent and the petitioner were friends, nominal transaction of sale and purchase was entered into. According to the petitioner, the amount had been received by him was returned to the husband of the respondent as he was facing financial crisis. He, therefore, submitted that there was no relationship of consumer and service provider between the respondent and the petitioner.

4. After hearing both the parties, the District Forum partly allowed the complaint and directed the petitioner/opposite party to execute the sale deed in favour of the respondent/complainant in respect of the said flat No.201 in “Vyankatesh Heights” and also directed the petitioner to pay Rs.25,000/- by way of compensation and Rs.10,000/- for mental agony. Aggrieved by this order of the District Forum, the petitioner filed an appeal against the order before the State Commission which was dismissed by the State Commission by the impugned order upholding the order of the District Forum. In these circumstances, the petitioner has now filed the present revision petition aggrieved by the impugned order.

5. We have heard Mr. Yatin M. Jagtap, Advocate, counsel for the petitioner and perused the record. The main contention of the learned counsel is that only a nominal agreement of sale was entered into because the husband of the respondent and the petitioner were friends but the amounts received in that respect were returned by the petitioner to the husband of the complainant because he was facing financial crisis. In view of this, it was submitted by learned counsel for the petitioner that there was no question of executing any sale deed. He submitted that the State Commission erred in passing the impugned order without proper appreciation of the factual matrix and based on erroneous assumption of facts and hence the impugned order is contrary to the provisions of law and the material available on record and hence the same deserves to be set aside.

6. We have considered the submissions made by learned counsel for the petitioner. We find that both the Fora below have returned their concurrent finding in favour of the respondent/complainant based on the facts of the case supported by the evidence placed before them. While upholding the order of the District Forum and dismissing the appeal of the petitioner, the State Commission has recorded the following reasons in paras 6 and 7 of the impugned order:-

“6. Adv. Patil submitted that, agreement to sale executed by appellant in favour of complainant. According to said price of flat i.e. Rs. 3,80,000/- was paid by the complainant herself and through HDFC Bank. Appellant received said consideration. Proof in that respect was produced by the complainant before the Forum. Allegations of appellant that, said amount was returned to the husband of complainant is not proved by the appellant. No documentary evidence to show that said amount was returned and sale transaction was nominal is produced by the appellant. District Forum rightly considered all the facts while allowing the complaint. 7. We heard both counsels and perused the record. Appeal decided at admission stage with consent of both counsels. It is an admitted fact that, agreement to sale was entered into between the complainant and appellant. It is also admitted fact that consideration amount of Rs.3,80,000/- was paid by the complainant to appellant. The contention of appellant that, said amount was returned to the husband of complainant is not proved by any documentary evidence by the appellant. In fact, legal notices were issued by complainant to the appellant for execution of sale deed and possession of flat. If husband of complainant would have been friend of the appellant legal notice would not have been issued for the possession of flat. The documents which were produced by the appellant to show that husband of complainant got the deposit amount from the appellant were not about the disputed flat. When it is admitted by appellant that, total consideration of the flat No.201 was received by appellant the contention that said amount was returned to the husband of complainant as he was facing financial crises cannot be believed. The agreement to sale was executed between the parties and accordingly total consideration was paid by the complainant. In our view, District Forum rightly considered all the facts while allowing the complaint. We do not want to interfere the order of Forum.”

7. We agree with the concurrent finding of facts returned by the Fora below and do not see any ground to interfere with the same. Keeping in view the ratio laid down by the Apex Court in the case of Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. [(2011) 11 SCC 269], this revision petition is liable to be dismissed and it is accordingly dismissed at the threshold with no order as to costs.

.……………Sd/-…..………. (K.S. CHAUDHARI, J.) PRESIDING MEMBER

….…………Sd/-…………… (SURESH CHANDRA) MEMBER SS/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 4924 OF 2012 (Against the order dated 10.09.2012 in Revision Petition No. RP/11/40 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai)

M/s. Shree Constructions, Through its Partner- Mr. Umesh Raosaheb Pawar Patil Address at : 102, Ganga Prasad, Ghantali, Sainath Chowk, Ram Ganesh Gadkari Road Naupada, Thane (W)-400602

... Petitioner

Versus 1. Shree Residency CHS Ltd. Near Shankar Temple Old Mumbai-Pune Road Mumbra- 400 612 2. Shri Namdev K. Patil, An adult, R/at Flat No. A/01, 3. Shri Harishchandra K. Patil, An adult, R/at Flat No. A/02, 4. Shri Narayan K. Patil, An adult, R/at Flat No. A/201, 5. Shri Dattatray K. Patil An adult, R/at Flat No. A/201 Nos. 2 to 5 are residents of Shree Residency CHS Ltd., Near Shankar Temple, Mumbra-400 612 Dist. Thane. ... Respondents BEFORE:

HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER

HON’BLE MR. VINAY KUMAR, MEMBER

For the Petitioner : Mr. Nagaraj Hoskeri, Advocate

Pronounced on : 16 th January, 2013 ORDER

1. The present revision petition has been filed by the builder M/s Shree

Constructions-opposite party No. 1. The facts of its case are these. The agreement for development of land was executed between the partners, i.e. petitioner-opposite party

No. 1- builder and the original land owners, namely, Shri Namdev K.Patil, Shri Harishchandra K. Patil, Shri Narayan

K. Patil and Dattatray K. Patil, opposite parties 2 to 5, for land measuring 2098 sq. yds. equivalent to 1754 sq.mts on 18.4.1986. The conveyance deed was executed between the opposite party No. 1 and opposite parties 2 to 5 in respect of above said land on 13.2.1996. The opposite party No. 1 started construction activities on the said land and sold the land to the respective purchasers by agreement to sell during 2001- 2002. On 14.2.2006, the society of the flat purchasers was formed and registered by the petitioner in the name of Shree Residency CHS Limited.

2. The complainant had filed a complaint before the District Consumer Forum, Thane against the petitioner and land owners for conveyance of the property. On. 7.3.2009, the

District Forum, Thane had passed the order and directed the petitioner-opposite party

No. 1 and the original land owners-opposite parties 2 to 5 jointly and severally to execute the conveyance deed in favour of the society and also awarded cost and compensation. There is no confliction on the point that the said judgment has attained finality. The above judgment was not challenged by any of the parties.

3. Thereafter, the complainant filed another application for execution of the above said order. The petitioner had complied with the monetary part of the order and shown the document to the forum for its having power to convey the land measuring 2098 sq. yards i.e. equivalent to 1754 sq. meters. The District Forum directed the opposite parties 1 to 5 to convey the land measuring 1754 sq. mts. in favour of the complainant- society. The State Commission, Mumbai has set aside the order passed by the District

Forum dated 24.11.2010.

4. We have heard learned counsel for the petitioner-opposite party No. 1. He argued that by virtue of development agreement, the petitioner is empowered to convey the property to the extent of 2098 sq. yd. i.e. 1754. Sq. mts. The society has no authority or power or right or title and interest to convey the property measuring 2200 sq. yards as alleged by the society. It is also pointed out that the order passed by the Hon’ble District Forum on 7.3.2009 nowhere mentions regarding the area of the land to be conveyed to the society. The District Forum vide its order dated 24.11.2010 has clarified the exact area to be conveyed to the society.

5. This is noteworthy that the opposite party No. 1/petitioner did not appear before the State Commission. The complainant and respondents No. 2 to 5 were present. On their joint request, the case was remanded. The State Commission also observed that

Section 25 clause III is not applicable to this case. He opined that Section 27 of the

Consumer Protection Act, 1986 is applicable in this case. It was ordered that the trial court has not followed the procedure. The learned State Commission observed:- “We find that since the forum did not follow the procedure prescribed, the direction given to execute the conveyance is per se illegal and, therefore, in light of the submission made by both the parties, it would be proper and just to set aside the impugned order dated 24.11.2010 and remand back the matter to consider the aspects referred earlier. Hence, we hold accordingly and pass the following order:-

ORDER Revision petition is allowed. Impugned order dated 24.11.2010 is set aside. Execution application bearing no. 12/2010 is remitted back to the forum in light of the observation made in the body of the order. Both the parties shall appear before the forum on 03.10.2012. No order as to costs.” 6. The learned State Commission did not state that the opposite parties were directed to execute the area to the extent of 1735 sq. mts. or 2200 sq. mts. of land. This question was not decided by the State Commission. It appears only apprehension on the part of the petitioner because order dated 24.11.2010 has been set aside. The apprehension appears to be false. This question certainly requires evidence and investigation. The State Commission has not decided this very point. This question is yet to be decided keeping in view all the facts and circumstances of the case. If the original order dated 7.3.2009 does not mention the area, it has to be found out from the relevant documents viz. Agreement, area allotted to the flat owners etc. The learned forum under the circumstances correctly remanded the case before the District Commission. During the remand proceedings, the District Forum is directed to decide the question raised by the State Commission and the area for which conveyance deed is to be executed. Both the parties have right to produce their evidence. The question is kept open and will be decided by the District Forum after hearing both the parties.

The revision petition has no force and the same is therefore dismissed. ………………Sd/-…..………..

(J. M. MALIK, J)

PRESIDING MEMBER

……………Sd/-….……………

(VINAY KUMAR)

MEMBER Naresh/reserved NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 435 OF 2011 (From the order dated 20.10.2010 in Appeal No.1601/03 of the U.P. State Consumer Disputes Redressal Commission, Lucknow)

Ghaziabad Development Authority

Through its Vice Chairman

Vikaspath,

Ghaziabad … Petitioner/OP

Versus

Satya Narayan

R/o Gyan Khand-4/144-A,

HIG D/S, First Floor,

Indirapuram

Ghaziabad … Respondent/Complainant

BEFORE

HON’BLE MR. JUSTICE K.S. CHAUDHARI, MEMBER

For the Petitioner : Mrs. Reena Singh, Advocate

For the Respondent : Mr. Pankaj Sharma, Advocate

PRONOUNCED ON 21 st January , 2013

O R D E R

PER JUSTICE K.S. CHAUDHARI, MEMBER This revision petition has been filed against the order dated 20.10.2010 passed by the U.P. State Consumer Disputes Redressal Commission, Lucknow (in short, ‘the

State Commission’) in Appeal No. 1601 of 2003 – GDA Vs. Satya Narayan Tyagi by which while dismissing appeal, order of District Forum allowing complaint was affirmed.

2. Brief facts of the case are that complainant/respondent was allotted House No.

144/A in Gyan Khand 4 of Indirapuram Scheme at the estimated price of Rs.5,50,000/- and complainant was required to deposit the entire amount by 15.10.1998, but he deposited the entire payment by 15.7.1997 and obtained possession of the house. After

3 years and 3 months, petitioner/OP asked the complainant to deposit additional

Rs.1,95,645/- and Rs.922/- as earlier price was only tentative. Complainant further alleged that after getting possession of the house, OP has neither fixed a brick nor put a nail in the house but demanded money and under compelling circumstances, under protest complainant deposited money with the OP. In such circumstances, complainant filed complaint for refund of the aforesaid money. OP did not file written statement before the District Forum and District Forum proceeded ex-parte against OP, but OP filed written arguments and learned District Forum after considering written arguments filed by OP allowed complaint and directed the petitioner/OP to refund the aforesaid amount along with 8% p.a. interest. Petitioner filed appeal before the learned State

Commission which was dismissed by impugned order against which this revision petition has been filed.

3. Heard Learned Counsel for the parties and perused record.

4. Learned Counsel for the petitioner submitted that as per affidavit given by the complainant he was bound to deposit the increased cost of the house and learned

District Forum has committed error in allowing refund of the aforesaid amount and learned State Commission has also committed error in dismissing appeal, hence, petition may be accepted and orders of learned State Commission and District Forum be set aside. On the other hand, learned Counsel for the OP submitted that order passed by learned State Commission is in accordance with law, as price cannot be escalated after giving possession of the flat and in such circumstances, revision petition be dismissed with cost. 5. It is admitted fact that house was allotted to the complainant at the estimated cost of Rs.5,50,000/-. This amount was to be deposited by complainant in instalments upto15.10.1998, whereas the complainant deposited entire amount by

15.7.1997 and obtained possession of the house. Demand notice for extra money was sent by OP after 3 years 3 months. OP has not filed written submissions before the

District Forum and learned District Forum proceeded ex-parte against the OP and rightly allowed the complaint and directed OP to refund extra money demanded by OP and deposited by complainant under protest. No doubt, affidavit was given by complainant on 15.4.1997 stating that if in future cost of the house is increased, he will deposit the same in accordance with rules. Learned Counsel for the petitioner could not show any rule on what basis price was increased. Price could have been escalated only on the ground of increase of payment of compensation for the land acquired but learned Counsel for the petitioner admitted that compensation has not been increased. In such circumstances, there was no occasion to increase the price of house, particularly, when complainant had deposited the entire amount before 15 months of payment schedule. Learned State Commission has not committed any error in dismissing appeal of the petitioner and in such circumstances, revision petition is liable to be dismissed.

6. Consequently, revision petition filed by the petitioner is dismissed with no order as to cost. ..……………Sd/-……………

( V.B. GUPTA, J)

PRESIDING MEMBER

..…………Sd/-…………………

MEMBER K NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 35 OF 2012 (From the order dated 18.04.2011 in Appeal No.1949/05 of the Haryana State Consumer Disputes Redressal Commission, Panchkula)

Haryana Urban Development Authority Through its Estate Officer, Sonepat

Haryana

Petitioner/OP

Versus

Jai Pal Singh S/o Sh. Ganga R/o House No.29, Sector 14, Sonepat, Tehsil and Distt. Sonipat, Through its Power of Attorney Sh. Pawan Kumar S/o Sh. Rattan Lal, R/o House No.1134, Sector-14, Sonepat, Haryana.

BEFORE

HON’BLE MR. JUSTICE K.S. CHAUDHARI,

PRESIDING MEMBER

For the Petitioner : Mr. R.S. Badhran, Advocate

For the Respondent : NEMO

PRONOUNCED ON 29 th January, 2013

O R D E R

PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

This revision petition has been filed by the petitioner against the impugned order dated 18.04.2011 passed by the State Consumer Disputes Redressal Commission,

Haryana (in short, ‘the State Commission’) in Appeal No. 1949 of 2005 – HUDA vs. Jai

Pal Singh by which while dismissing appeal order of District Forum was affirmed.

2. Brief facts of the case are that complainant/respondent was allotted Plot No.323-

P in Sector 13 Part, Sonepat vide letter dated 19.9.2001, but petitioner/OP failed to deliver actual physical possession of the plot to the complainant after providing all basic amenities, hence, complainant filed complaint alleging deficiency on the part of OP and prayed for delivery of possession of alternative plot. OP contested complaint and learned District Forum while allowing complaint granted following reliefs: “ … ..the respondents are directed to allot an alternative plot to the

complainant bearing No.2145P, in Sector-7, Sonepat in place of plot

No.323P, situated in Sector-13 Part, Sonepat. However, it is made clear

that the payment of excess area, if any, will be made by the complainant

to the respondents.

As far as interest-compensation is concerned, the respondents are

directed to pay interest-compensation to the complainant at the rate of

12% per annum on the amount lying deposited with the respondents from

the date of allotment of the plot till the actual physical possession of

alternative plot No.2145P, Sector-7,Sonepat, is delivered to the

complainant. The respondents are also directed to deliver the actual

physical possession of the alternative plot No.2145P, Sector-7,Sonepat to

the complainant and to refund or adjust the amount of interest already

deposited by the complainants with the respondents and not to charge any

interest or penalty or any other amount from the complainant at the time of

handing over the actual physical possession of alternative plot to the

complainant. The respondents are further directed to pay compensation

to the tune of Rs.5,000/- for causing mental agony and harassment and

further to pay Rs.2000/- under litigation expenses to the complainant.

With these observations, findings and directions, the present

complaint stands accepted and the respondents are directed to make the

compliance of this order within 30 days from the date of this order”.

3. Petitioner filed appeal before the State Commission and the State Commission vide impugned order dismissed appeal on the count of delay of 255 days as well as on merits.

4. Heard learned Counsel for the petitioner and perused record.

5. This petition has been filed after inordinate delay of 140 days. Petitioner has not filed any application for condonation of delay with revision petition filed on 4.1.2012. On

19.9.2012, learned counsel for the petitioner sought adjournment to file application for condonation of delay. Even after lapse of 4 months, application for condonation of delay has not been filed. As revision petition has been filed with inordinate delay of 140 days and no application for condonation of delay has been filed, petition being barred by time liable to be dismissed at admission stage.

6. Learned State Commission also dismissed appeal on the count of inordinate delay of 255 days as well as on merits. It appears that petitioner is in the habit of filing appeal or revision petition after inordinate delay and in such circumstances, in the absence of any application for condonation of delay, revision petition is liable to be dismissed.

7. Petitioner has challenged in this revision petition only rate of interest awarded to the complainant and period for which interest has been allowed and only to this extent notice has been issued by this Commission to the respondent. Apparently, rate of interest and period for which interest awarded by the District forum and affirmed by the learned State Commission does not call for any interference.

8. Consequently, the revision petition filed by the petitioner is dismissed at admission stage with no order as to cost.

..……………Sd/-………………

PRESIDING MEMBER K NTAIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 1142 OF 2010 Alongwith M. A. for Stay

(From order dated 09.03.2009 in Appeal No. 551 of 2006 of the State Consumer Disputes Redressal Commission, Haryana)

Smt. Pushpa Singhal, W/o Sh. Girdhar Gopal Singhal, Resident of H. No. 1001, Sector- 2, Scheme No. 7, Shanti Mnagar, Meerut, Uttar Pradesh Through G. P. A. Holder Sh. Bishnu Kumar Son of Late Shri Ram Narayan Resident of House No. 1693, Sector-7-E, Faridabad.

..…Petitioner

Versus

1. Haryana Urban Development Authority, Sector-6, Panchkula Through its Chief Administrator

2. Estate Officer, Haryana Urban Development Authority, Sector- 12, Fardiabad

……Respondents

BEFORE:

HON’BLE MR.JUSTICE K.S. CHAUDHARI, MEMBER

For the Petitioner : Mr. Madhurendra Kumar, Advocate

For the Respondents : Mr. R. S. Badhran, Advocate

Pronounced on: 4 th February, 2013

By way of present petition, petitioner/complainant has challenged order dated

9.3.2009, passed by State Consumer Disputes Redressal Commission, Panchkula

(for short, ‘State Commission’).

2. Petitioner was allotted residential plot no. 331, measuring 350.8 Sq. yards in

Sector-64, HUDA, Faridabad, vide allotment letter dated 8.1.2001. Petitioner

surrendered the plot in question to the respondent and got refund after deduction of

10% of the tentative price, vide cheuqe No.587862 dated 28.06.2003, as per

respondents/o.p. policy which was accepted by her without any protest. Case

of petitioner is that she had surrendered the plot under compelled circumstances because the development works in the area were not completed and for that reason she could not raise construction over the plot. In the complaint filed before the

District Consumer Disputes Redressal Forum, Faridabad (for short, ‘District Forum’) petitioner has prayed that an alternative plot be allotted to her; the deducted 10% amount be adjusted and she be paid 18% per annum interest on the total deposited amount; not to charge interest on the installments amount and delayed interest; not to charge extension fee and to pay Rs.50,000/-on account of mental agony and harassment caused to her and Rs.11,000/- as litigation expenses.

4. Respondent in its written statement justified the refund 10% of the tentative price of the plot as petitioner had surrendered the plot of her sweet will. It is also stated that the development works in the area were in progress and possession was to be delivered very soon. However, petitioner had surrendered the plot in question for some personal reasons and had accepted the refund without any protest. Thus, the complaint merit dismissal.

5. District Forum, while accepting the complaint, vide order dated 16.1.2006, granted the following reliefs ; “ I) The respondent are ordered to allot an alternative plot in some developed sector of Fardabad at the basic price of the sector to the complainant in lieu of Plot No. 331, Sector-64, Faridabad. ii) It is further ordered if the area of the alternate plot is found excess then difference of amount be also charged on the basic floating rate of the sector. iii) The respondents are further ordered to adjust the deducted amount alongwith interest @ 13% p.a. payable w.e.f.its deduction till its adjustment towards the price of the plot now to be allotted as per aforesaid order. iv) The respondents are also ordered not to charge any kind of interest, penal interest, compound interest, penalty and extension fee up till the period of delivery of the physical possession of the plot now ordered to be allotted. v) The respondents are also ordered to pay interest on the deposited amount of the complainant w.e.f. its deposit till refund. vi) The respondents are also ordered to pay Rs.25,000/- on account of mental tension, unnecessary harassment caused to the complainant at the hands of the respondents. vii) The respondents are also ordered to pay Rs. 5,000/- as litigation charges. The complainant herself or through her G. P.A. can get comply with the order of the Forum. The respondents are ordered to comply with the order of the Forum within 30 days after receiving the copy of the present order”.

6. Aggrieved by the order of District Forum, respondents filed an appeal before the State Commission and the same was allowed by the impugned order.

7. Hence, this revision.

8. We have heard the learned counsel for the parties and have perused the record.

9. It is contended by learned counsel for the petitioner that respondent had failed to develop the plot in question and that is why it never offered possession of the same to the petitioner. Thus, respondents have violated the terms of letter of allotment. Moreover, petitioner had sought the refund of the deposited amount, under compelling circumstances which had been created solely by the respondents.

10. On the other hand, it is contended by learned counsel for the respondent that since petitioner has withdrawn the amount deposited by her, she cease to be a consumer and as such consumer complaint itself is not maintainable. 11. State Commission in its impugned order has observed ; “ Admittedly, the plot No. 331 located in Sector-64, HUDA, Faridabad was allotted to the complainant and possession of the same was to be delivered after completion of the development works. However, the complainant vide his letter dated 22.4.2003 submitted to the opposite parties had requested for refund mentioning in the letter that he was not in a position to deposit further installments due to personal reason and cheque No. 587862 dated 28.6.2003 was accepted by him without any protest and after about one year and eight months, the complaint was filed by him. It cannot be ignored that as per Clause 6 of the letter of allotment, the complainant was provided facility that no interest would be charged till the offer of possession on the instalments amount. Therefore, the clause 6 of the allotment letter falsify the version of the complainant itself. Taking into account the totality of the facts and circumstances of the case and the rising price of the landed property, we are of the opinion that the complainant wanted to take benefit of higher price of the plot by filing present complaint on false averments in the complaint. Once he voluntarily surrendered the plot and accepted the refund without any protest, then filing of complaint after about one year and eight months cannot reopen his case. After surrender of the plot, he cannot be said a consumer of the opposite parties. In view of the foregoing discussion, we feel that the complainant is not entitled for any relief. The District Forum has not considered the factual position on record and as such the impugned order cannot be sustained”.

12. The letter vide which petitioner surrendered the plot in question reads as

under; “ To The Estate Officer HUDA, Faridabad

Sub: Surrender of Plot No.331 in Sector-64, Fardibad

Sir, With due respect I am to state that I have been allotted the plot no. 331 in Sector-64, Faridabad. The possession of above said plot has not been offered to me till date. Due to two enhancement and______of enhancement in lumpsum, I am not in a position to pay any amount of enhancement/any amount to the above said plot in future being salaried person. It is therefore, request you to kindly refund the amount to me at any early date. Original allotment letter is lost by me and other original receipt of money deposited are enclosed for your further necessary action & early payment. Thanking you, Yours sincerely, Sd/- (Smt. Pushpa Singhal) W/o G. G. Singhal Q.No. 1, Govt. Qtrs.,Type-III, Dated 22.04.2003 Probyn Road, Delhi- 34”.

13. As per the surrender letter, petitioner herself has sought refund of the

amount, since she was not in a position to pay the enhanced amount.

14. As per Clause 7 & 9 of the Allotment Letter, possession of the site was to be offered on completion of development works in the area and the price mentioned in the allotment letter was only tentative and any enhancement in the cost of land awarded by the competent authority/court under the land Acquisition Act, was to be payable proportionately by the allottees. Thus, the petitioner herself has withdrawn amount deposited by her and has tried to shift blame upon the respondents which cannot be permitted under the law. Admittedly, petitioner had already withdrawn the amount deposited by her and once she had taken the refund amount and as such on the date of filing of the complaint before the District Forum on 12.4.2005, petitioner was not a ‘Consumer’ as per Section 2 (i) (d) of the Consumer Protection

Act, 1986 (for short, ‘Act’). Under these circumstances, State Commission rightly dismissed the complaint of the petitioner. We fully concur with the observations made by the State Commission, that District Forum has ignored the factual position on record and committed a great error in accepting the complaint. Since, order passed by the State Commission is well reasoned, objective, fair, just and legal it needs absolutely no interference in this revision.

15. The present petition is nothing but gross abuse of the process of law and has been filed just to waste the time of this Commission. It is well settled that frivolous litigation clogs the wheels of justice, making it difficult for courts to provide easy and speedy justice to the genuine litigants. A strong message is required to be sent to those litigant who are in the habit of challenging the order of the fora below even it the same is based on sound reasoning. No one should be allowed to indulge in false and frivolous litigation. Action of the petitioner has resulted in wasting the time of fora below as well as of this Commission. Under these circumstances, present revision petition is liable to be dismissed with cost. Accordingly, we dismiss this revision petition with cost of Rs. 10,000/- (Rupees Ten Thousand only)

16. Petitioner is directed to deposit the cost by way of demand draft in the name of ‘Consumer Welfare Fund’ as per Rule 10A of Consumer Protection Rules, 1987, within four weeks from today. 17. In case, petitioner fails to deposit the cost within prescribed period, then she shall be liable to pay interest @ 9% p.a. till its realization. 18. List on 08.03.2013 for compliance. ……………………………….J (V.B. GUPTA) ( PRESIDING MEMBER)

…………………………J

(K.S. CHAUDHARI)

MEMBER SSB/ NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

FIRST APPEAL NO. 136 OF 2013 (From the order dated 8.06.2012 in CC No. 109/2010 of the Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad)

M/s. Alliance Buildwell Projects Pvt. Ltd. With its office at Prestige Tech Park Jupiter Block, 2nd Floor Marathahalli – Sharjahpur Ring Road Bangalore – 560037 Rep. by its M.D. Manoj Nanduri … Appellant/Complainant

Versus

1. Mr. Prakash Chandrani S/o Moolchand Chandrani

2. Smt. Jyoti Chandrani Both R/o H.No. 13-6-463/A/23 Ashok Vihar Colony, Taalagadda, Hyderabad – 500067

… Respondents/ OPs

BEFORE

HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER HON’BLE DR. B.C. GUPTA, MEMBER

For the Appellant : Ms. Kheyali Sarkar, Advocate

PRONOUNCED ON 11 th March , 2013

O R D E R

MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

This appeal has been filed by the Appellant/Complainant against the impugned order dated 8.6.2012 passed by the A.P. State Consumer

Disputes RedressalCommission, Hyderabad (in short, ‘the State Commission’) in C.C.

No. 109/2010 – Prakash Chandrani & Anr. Vs. M/s. Alliance Buildwell Projects Pvt. Ltd. by which, the complaint was allowed in part and appellant/OP was directed to refund

Rs.26,10,964/- along with interest @ 9% p.a. and Rs.10,000/- as costs.

2. Brief facts of the case are that complainant/respondent agreed to purchase villas from OP for total consideration of Rs.87,03,227/- and made payment of Rs.26,10,964/- on different dates. OP was required to complete construction within 24 months, but as there was no construction activity at the spot even after lapse of 2 years and complainant came to know that OPs would abandon the project at Hyderabad, he filed complaint for refund of amount along with interest and damages. OP/Appellant contested the complaint and learned State Commission vide impugned order allowed the complaint and directed, as aforesaid.

3. Heard learned Counsel for the appellant at admission stage and perused record.

4. Appellant has filed application for condonation of delay along with appeal. Appellant has not mentioned in the application for condonation of delay that how many days delay is to be condoned. As per office report, there is delay of 120 days, but, in fact, there is delay of 175 days in filing appeal. Office has calculated period of delay on the assumption that certified copy was received on 18.9.2002, whereas perusal of certified copy reveals that free copy of the order was issued on

23.7.2012, which must have reached the appellant. Appellant has not mentioned in his application for condonation of delay the date of receipt of free copy and date of receipt of certified copy. In such circumstances, it becomes clear that there is delay of 175 days from the date of receipt of free copy in ordinary course of business.

5. Learned Counsel for the appellant submitted that delay occurred on account of consent and suggestions from the various authorities and in procuring relevant documents, translation and typing of innumerable documents. Paragraphs 2 & 3 of the application for condonation of delay read as under :

“That the appellant respectfully submits that the Appellant is a body

corporate having a vast business and a huge share capital in the money market and the projects of the Company is spread over

different states. Thus, it needs to follow a rigid protocol before

taking any decision. Besides, there are number of authorities

whose consent and suggestions are required to be taken before

proceeding with the litigation further. Consequently, the Appellant

could not file the accompanying appeal before

this Hon’ble Commission within the prescribed time limit.

That the First Appeal filed by the Appellant requires to undergo a

number of steps before getting finally ready for filing, e.g., procuring

of relevant documents, translation and typing of innumerable

documents. Therefore, the First Appeal could not be filed within

specific time as prescribed by law. Hence, the reason for the delay

in filing the First Appeal is the procedure that has to be followed as

a result of the internal hierarchy of the Appellant Company. First

Appeal could not be filed within the stipulated period due to the

aforesaid hardship. Hence, it is submitted further that the delay in

filing of the above First Appeal is due to bona fide reasons beyond

the control of the Appellant. And only when the filing Authority got

all the required approval, the Appellant has filed the above matter in

the month of February dated 13.2.2013 with a delay of

only days in filing.

6. No specific date has been given by the Appellant from which authority when suggestion was received and in such circumstances, there is no explanation at all what to talk of reasonable explanation for condonation of delay. As far as procuring relevant documents, translation and typing of innumerable documents is concerned, perusal of index submitted along with memo of appeal reveals that all the documents were in possession of the appellant and apparently no document was translated and wrong assertions have been made in the application for condonation of delay. In such circumstances, application for condonation of inordinate delay of 175 days is liable to be dismissed.

This view is further supported by the following authorities:

7. In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it has been observed; “It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.”

8. Hon’ble Supreme Court after exhaustively considering the case law on the aspect of condonation of delay observed in Oriental Aroma Chemical Industries

Ltd. Vs. Gujarat Industrial Development Corporation reported in (2010) 5 SCC

459 as under; “ We have considered the respective submissions. The

law of limitation is founded on public policy. The legislature

does not prescribe limitation with the object of destroying the

rights of the parties but to ensure that they do not resort

to dilatory tactics and seek remedy without delay. The idea

is that every legal remedy must be kept alive for a period

fixed by the legislature. To put it differently, the law of

limitation prescribes a period within which legal remedy can

be availed for redress of the legal injury. At the same time,

the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the

remedy within the stipulated time.”

9. Hon’ble Apex Court in (2012) 3 SCC 563 – Post Master General

& Ors . Vs. Living Media India Ltd. and Anr. has not condoned delay in filing appeal even by Government department and further observed that condonation of delay is an exception and should not be used as an anticipated benefit for the Government departments.

10. Hon’ble Apex Court in 2012 (2) CPC 3 (SC)

– Anshul Aggarwal Vs. New Okhla Industrial Development Authority observed as under: “ It is also apposite to observe that while deciding an

application filed in such cases for condonation of delay, the

Court has to keep in mind that the special period of limitation

has been prescribed under the Consumer Protection Act,

1986, for filing appeals and revisions in Consumer matters

and the object of expeditious adjudication of the Consumer

disputes will get defeated, if this Court was to entertain highly

belated petitions filed against the orders of the

Consumer Foras”.

11. Consequently, appeal stands dismissed at admission stage barred by time as application for condonation of delay is being dismissed with no order as to costs.

..………………Sd/-……………

PRESIDING MEMBER

..………………Sd/-……………

( DR. B.C. GUPTA ) MEMBER

K NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

(1) REVISION PETITION NO. 3161 OF 2011 with

I. A. No. 1 of 2011 (for Stay)

I. A. No. 2 of 2011 (for Condonation of Delay)

(Against the order dated 29.06.2010 in Appeal no. 2035 of 2010 of the Karnataka State Consumer Disputes Redressal Commission, Bangalore)

M/s. Megacity (Bangalore) Developers and Builders Pvt. Ltd. No. 1, 5th Cross, Chandraloka Apartments, Gandhinagar Bangalore – 560009

…. Petitioner/Opposite party

Rita Adyanthaya W/o. Shri B. G. Adyanthaya R/o. No. 439, 8th Main SRS Nagar, Behind IIM, Bilekahalli Bangalore- 560076

…. Respondent/Complainant

Seetharam Shetty H. S/o. Late Shri Gangadhara Shetty R/o. Hegde Hithlu Kodimbady Post Puttur- 574287 …. Respondent/Complainant

(3) REVISION PETITION NO. 3163 OF 2011 with I. A. No. 1 of 2011 (for Stay)

D. Pushpa W/o. Shri B. R. Prabhakar Raj Urs R/o. 557, 5th Main 4th Cross, Vijay Bank Layout Bangalore …. Respondent/Complainant

Col. A.J. Bhandary( Retd.) S/o late Agari Lakkappa Bhandary, R/ at No. 614, 8-B, S. R. S. Nagar, Belikahalli, Bangalore- 560076

…. Respondent/Complainant

BEFORE:

HON’BLE MRS. REKHA GUPTA, MEMBER

For the Petitioner : Mr. Purshottam SharamTripathi, Advocate

For the Respondent : Mr. P. S. Shetty, Advocate with Mr. Lalit Kumar, Advocate.

Pronounced on: 13 th March , 2013

Petitioner/Opposite Party being aggrieved by common order dated 29.6.2010, passed

(in Appeals No. 2035,2036,2037 and 2038 of 2010) by Karnataka State Consumer

Disputes Redressal Commission, Banagalore (for short, ‘State Commission) has filed above noted petitions. Alongwith these petitions, applications for condonation of delay of

360/390 days have also been filed. 2. Respondents/complainants applied for allotment of residential sites in “Vagragiri Township”, Bangalore. They paid money for that purpose to the Petitioner. However, Petitioner did not allot the sites nor registered the sale deed in their favour. The reason given by petitioner for not allotting the sites is that due to the legal hurdles in respect of the land in which the layout to be formed, the petitioner is unable to allot the sites.

3. Respondents, therefore filed complaints before the Additional District Consumer Disputes Redressal Forum, Bangalore (for short, ‘District Forum’).

4. District Forum, vide its common order dated 23.04.2010, allowed the complaints and directed Petitioner’s Company to refund the total amount deposited by the respondents alongwith compensation of Rs.3,50,000/- each, with interest @ 12% p.a. from the date of the order. It further awarded Rs.5,000/- as costs to each of the respondents.

5. Aggrieved by the order of District Forum, Petitioner filed appeals before the State Commission which dismissed the same at admission stage itself, vide its impugned order.

6. Hence, these petitions.

7. We have heard arguments on the applications for condonation of delay, advanced by learned counsel for the parties.

8. Grounds for condonation of delay read as under ; “ 4. That aggrieved by the order dated 29.6.2010 the Petitioner Company filed Writ Petition No. 33978 of 2010 before the High Court on 26.10.2010. 5. That vide its order dated 30.4.2011 the Hon’ble Division Bench of the High Court of Karnataka at Bangalore was pleased to dismiss the writ petition filed by the Petitioner as withdrawn with liberty to avail of alternative remedy under the provisions of the Consumer Protection Act, 1986. 6. The certified copy of the order dated 30.5.2011 was notified as ready on 6.6.2010. 7. That the Petitioner herein received the copy of 6.6.2011. 8. That on 22.6.2011 the petitioner requested their counsel before the State Commission to return the documents and file pertaining to the instant case. 9. That on 15.7.2011 the Petitioner herein received the file and copy of the appeal from their counsel before the Hon’ble State Commission. 10. That on 28.7.2011 the Petitioner sent the relevant documents to the present counsel opinion as to whether the case was a fit case to file revision. 11. That on 09.8.2011 the counsel for the Petitioner opined that the present case was a fit case to file revision. 12. That on 15.8.2011, the Petitioner directed their counsel to file the present revision petition. 13. That on 29.8.2011 the Petitioner sent the relevant documents pertaining to the case to the present counsel. 14. That the Petitioner’s counsels took 10 days to draft the petition. 15. That further time of 2 weeks were taken in translation. 16. That the present Revision Petition was filed on .09.2011”.

9. The gist of the grounds cited in applications for delay is that, petitioner earlier challenged the order of State Commission by way of writ petition before Karnataka High

Court. By its order dated 30.5.2011, the High Court dismissed the writ petition as withdrawn with liberty to the petitioner, so as avail of alternative remedy.

10. In this context, it would be pertinent to refer to a decision of Hon’ble Supreme

Court in “M/s Advance Scientific Equipment Ltd. & Anr. Vs. West Bengal Pharma

& Photochemical Development Corporation Ltd. (Appeal (Civil) Nos. 17068-

17069/2010, decided on 9 July 2010), in which it has observed interalia as under; “ … … We are further of the view that the petitioners’ venture of filing petition under Article 227 of the Constitution was clearly an abuse of the process of the Court and the High Court ought not to have entertained the petition even for a single day because an effective alternative remedy was available to the petitioner under Section 23 of the Act and the orders passed by the State Commission did not suffer from lack of jurisdiction”. 11. Moreover, Hon’ble Supreme Court in “Anshul Aggarwal Vs. New Okhla

Industrial Development Authority, IV (2011) CPJ (SC) observed; “ It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras”.

12. Decision of Anshul Aggarwal (supra) has been reiterated in Cicily Kallarackal Vs. Vehicle Factory, IV (2012) CPJ 1(SC) 1, wherein Hon’ble Supreme Court observed;

“4 This Court in Anshulal Aggarwal v. NOIDA, (2011) CPJ 63 (SC) has explained the scope of condonation of delay in a matter where the special Courts/Tribunals have been constituted in order to provide expeditious remedies to the person aggrieved and Consumer Protection Act, 1986 is one of them. Therefore, this Court held that while dealing with the application for condonation of delay in such cases the Court must keep in mind the special period of limitation prescribed under the statute (s). 5. In the instant case, condoning such an inordinate delay without any sufficient cause would amount to substituting the period of limitation by this Court in place of the period prescribed by the Legislature for filing the special leave petition. Therefore, we do not see any cogent reason to condone the delay. 6. Hence, in the facts and circumstance of the case as explained hereinabove, we are not inclined to entertain these petitions. The same are dismissed on the ground of delay”.

13. Hence, in view of the decision of M/s Advance Scientific Equipment Ltd.

(supra) High Court ought not to have entertained the writ petition, since petitioner had an effective alternate remedy available under the Consumer Protection Act, 1986.

Under these Circumstances, act of petitioner in approaching a wrong forum, will not entitle him to have the delay condoned.

14. Accordingly, we find no just and sufficient cause to condone the long delay of

360/390 days in filing of the present petitions. Applications for condonation of delay without any merit as well having no legal basis are not maintainable. Consequently, the present revision petitions being hopelessly barred by limitation, are dismissed with cost of Rs.10,000/-(Rupees Ten Thousand Only) each, to be paid to the respective respondent. 15. Petitioner is directed to deposit the aforesaid cost by way of demand draft in the name of respective respondent, within a period of four weeks from today. In case, petitioner fails to deposit the cost within the specified period, then it shall be liable to pay interest @ 9% p.a., till realization. Cost shall be paid to the respondents only after expiry of period of appeal/revision, preferred if any.

16. List for compliance on 26.4.2013.

……..……………………J

(V.B. GUPTA)

( PRESIDING MEMBER)

…………………………

(REKHA GUPTA)

MEMBER

SSB/ NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 4698 OF 2010 alongwith I.A. No.01 of 2012 ( Application for Stay) (From the order dated 27.9.2010 in Appeal No.1346/2010 of the State Commission, Haryana, Panchkula)

Mehar Chand S/o Gori Shankar Yadav, R/o Ratakhurd Tehsil Narnaul Haryana

…Petitioner

Versus

1. Haryana Urban Development Authority Through its Chief Administrator Head Office : Panchkula, Haryana

2. Administrator, HUDA Sector-14, Gurgaon

3. Estate Officer, Haryana Urban Development Authority, Rewari

4. Junior Engineer, Haryana Urban Development Authority, Sector-1, Narnaul, Haryana.

5. District Town Planner, Narnaul, Haryana ….Respondents

BEFORE:

HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER HON’BLE MRS. REKHA GUPTA, MEMBER

For the Petitioner : Mr. Ravinder Yadav, Advocate with Mr. Pushpender Chaudahry, Advocate

For the Respondents : Mr. R.S. Badhran, Advocate

Pronounced on : 14 th March, 2013 ORDER

Petitioner/complainant, being aggrieved by order dated 27.9.2010, passed by State Consumer Disputes Redressal Commission Panchkula (for short, ‘State Commission’) has filed present revision petition. 2. It is petitioner’s case that respondents/ opposite parties have set up an Urban Estate at Narnaul, Sector-I part 1 for allotment of residential plots to the general public. The acquisition proceedings of Urban Estate were started around the year 1990- 1992. After completing the official process, applications were invited from various classes of persons for different types of residential plots. In that process, plot no.463 (4 marla) was allotted by the respondents to Smt. Raj Bala Devi, vide allotment letter dated 15.7.2003. Possession of this plot was delivered to Smt. Raj Bala in the year 2006. Later on, vide reallotment letter dated 5.5.2008, plot in question was allotted to the petitioner and conveyance deed dated 15.12.2008 was executed in his favour. Petitioner completed construction upto DPC level. It is alleged that on 3.1.2009 petitioner was stunned on receipt of notice from the court of Additional Civil Judge (Sr. Division, Narnaul) in case titled as “Hargobind vs. HUDA” for initiating contempt proceedings against various authorities as well the petitioner. It was only then petitioner came to know that litigation for plot in question is pending since 2006. At no stage, during last three years respondent disclosed the aforesaid fact to the original allotteeor to the petitioner. Thus, petitioner became victim of cheating and fraud played by the respondents. It is further stated that petitioner requested respondents through legal notice to allot him some undisputed plot of 4 marla size or any other suitable size in Sector-1 at HUDA, Narnaul, alongwith compensation of Rs.5 lacs. This all went in vain. Accordingly, petitioner filed a complaint before District Consumer Disputes Redressal Forum, Narnaul ( for short ‘District Forum’) seeking compensation of Rs.5 lacs and allotment of a plot as well as sum of Rs.2 lacs being spent on raising the construction.

3. Respondents no.1 to 4 in their reply took preliminary objection stating that a civil suit is pending regarding disputed plot in the court of Additional Civil Judge, Narnaul, where contempt proceedings are also pending against respondents and petitioner. As such, present complaint cannot be decided by the District Forum. On merits, respondents admitted the factum of allotment of residential plot in the name of petitioner. Respondents in their written statement had taken the plea that since plot no.463 allotted to the petitioner is disputed one, as such petitioner shall have to wait till the decision of the dispute or can take refund of the amount deposited by him with interest as per respondent’s rule.

4. Respondent no.5 in its reply has stated that it prepares various plans relating to the planning of the sector and the base map of which is supplied by HUDA Authorities.

5. District Forum vide order dated 22.7.2010, dismissed the complaint.

6. Being aggrieved, petitioner filed an appeal before the State Commission, which affirmed the order of District Forum, observing that there has been no deficiency in service on the part of the respondent and the complaint was rightly dismissed. 7. Hence, this petition.

8. We have heard learned counsel for the parties and gone through the record.

9. It is an admitted case that petitioner is a re-allottee of the plot in question, whereas original allottee was Smt. Raj Bala. It is also apparent from the record, that civil suit was filed on 28.3.2006 when petitioner was not in picture at all. Petitioner become owner of the plot in question only in the year 2008 and at that time the civil suit was pending. There is nothing on record to show as to whether original allottee had informed the petitioner about the same. Thus, there has been no concealment on the part of respondents in the present case. Accordingly, there is no deficiency on the part of the respondents.

10. However, in view of the admission made by the respondents in their written statement that “In the present complaint the allotted plot No.463 is disputed as such the complainant will have to wait up to the decision of the dispute or can take refund of the amount deposited by him with interest as per HUDA Rules.”, we, therefore, order that if the petitioner so desires, he can wait till the decision of civil suit or can take refund of the amount with interest as per HUDA Rules.

11. With these observations, present revision petition stand disposed off.

12. No order as to cost.

…..…………………………J

(V.B. GUPTA)

PRESIDING MEMBER

…..…………………………

(REKHA GUPTA)

MEMBER

Sg/ NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION No. 1569 of 2006

(From the order dated 10.11.2005 of the West Bengal State Consumer Disputes Redressal Commission, Kolkata in SC Case no. 4/A/2004)

Shri Jagannath Mandal B C Bhar Road, 2nd Lane Mukherjee Bagan P O Chandannagar District Hooghly West Bengal – 712126

Petitioner

Versus

Shri Sanjoy Ghosh Hatkhola P O Chandannagar District Hooghly West Bengal – 712136

Respondent

BEFORE:

HON’BLE MR JUSTICE V B GUPTA PRESIDING MEMBER

HON’BLE MRS REKHA GUPTA MEMBER

For the Petitioner IN PERSON For the Respondent Mr Surajeet Gangopadhyay Advocate & Mr Sanjay Ghosh, Advocate

Pronounced on 18 th March 2013

ORDER REKHA GUPTA

This present revision petition is filed against the order dated 10.11.2005 of the West Bengal State Consumer Disputes Redressal Commission, Kolkata (n short, ‘the State Commission) in SC Case no. 4/A of 2004.

A perusal of the record shows that the petitioner has not filed the original complaint before the District Consumer Disputes Redressal Forum, Hooghly (in short, ‘the District Forum’). Hence, the facts of the case are reproduced from the orders of the District Forum.

Shri Jagannath Mondal son of late Ramphal Mondal of Hooghly has alleged that Shri Sanjay Ghosh the respondent herein came to an agreement with him orally that Mr Ghosh would complete his two storied residential building at Chinsurah at the cost of Rs.10,45,738/-. It was a turn-key project i.e., Mr Ghosh will have to complete the building with boundary walls, lime terrace, concrete water tank, marbel setting and bath room, toilets all electrical wiring and fitting, roof treatment etc.

The petitioner has stated that he was an employer of M/s Uranium Corporation of India Ltd., at Jadugada and he was residing in the quarters of the company at Jadugada Colony in Jharkhand, therefore, he was unable to supervise the construction regularly. He has stated that the work was started on 28.02.2000 and he had an argument with Mr Ghosh that the building constructions would be completed within nine months and he would have to leave the quarters on 20th November 2000 and if he cannot leave the quarters within that scheduled date he will have to pay house rent @ 4000/- per month, instead of Rs.196/- per month. Moreover, he will have to pay electric charges @ Rs.4/- per unit instead of 60 paisa per unit. Therefore, he will have to incur huge loss if the house construction was not completed within the scheduled date.

The petitioner alleged that Mr Ghosh, the respondent left the construction work on flimsy ground that some miscreants of the locality demanded donation from him and he could not redress the demand of the miscreants. The petitioner has said that this is deficiency of service on the part of the respondent and he had to suffer a loss for the non-completion of the building. Moreover, he had to complete the rest of the building for which had to spend Rs.4,80,000/- for the completion of the building. The petitioner has said that he had paid excess amount of Rs.1,59,128/-. Moreover, he had to incur loss to the amount of Rs.73,000/- for the delay of the construction and house rent from 01.12.2000 to 20.01.2001.

The Respondent, Mr Sanjoy Ghosh, admitted that he had an oral agreement with Mr Mondal for the construction of two storied building and he started the construction on 28.02.2002 but he was not aware that the petitioner will have to leave his quarters at Ranchi on and from November 2002. The respondent has denied that he wilfully left the place of work in the first week of November 2000 without completing the work. The respondent has also admitted that he has received Rs.6,10,000/- from the petitioner but he denied that he was aware of the estimated cost submitted by the petitioner authenticated by a civil engineer. The estimated cost was Rs.4,40,872/-. The respondent has stated that there is a due for Rs.35,000/- from the petitioner and he has submitted a detailed estimate of that amount. The respondent has stated that 60% of the entire work was done by him and he had to spend another Rs.15,000/- for the repair of the work which was damaged by the miscreants and he did not demand the money from the petitioner and he has spent that money from his own pocket. The respondent has stated that he had completed the rest of the work under his supervision and the petitioner agreed to pay Rs.300/- per day for that purpose and he had to visit the place 30 times as per his such agreement. The respondent has submitted a bill for Rs.6,26,438/- and he received payment of Rs.6,10,000/-. He has also demanded that Rs.9000/- is due to the petitioner for his supervision activities. He is, therefore, entitled to get Rs.35,438/- from the petitioner.

The respondent has submitted an affidavit in support of his claim and statement. Shri Sanat Dutta electrician has also submitted an affidavit where he has stated that Sanjoy Ghosh completed rest of the work and the petitioner agreed to pay for the rest of the work to the workers directly. Jakir Khan (Mason) son of late Kobad Khan, Hooghly in his affidavit has also stated that the rest of the work i.e., 40% of the work was completed by them under the supervision of Mr Sanjoy Ghosh and Mr Sanjay Babu had repaired the damage done by the miscreants. In that affidavit Jakir Khan stated that Sanjay Babu frequently visited the place and supervised their work and the whole work was completed under the supervision of Sanjay Ghosh.

The District Forum after going through the evidence brought on record dismissed the complaint of the petitioner.

Aggrieved by the order of the District Forum, the petitioner filed an appeal before the State Commission. The State Commission vide their order dated 10.11.2005 while affirming the orders of the District Forum held the respondents responsible for reneging from his position and putting the appellants in great inconvenience and financial loss at this retired age by a ‘trivial ground’ and hence modified the District Forum’s order to the extent that the respondent should pay a sum of Rs.10,000/- as compensation to the petitioner for the financial loss, harassment and loss of health due to breach of contract on the part of the respondent.

Hence, this present revision petition.

We have heard the petitioner who is appearing in person and also the counsel for the respondent and have gone through the records of the case carefully.

Undisputed facts of which are that more than 60% of the work has been completed by the respondent and the respondent admitted that he had received Rs.6,10,000/- from the petitioner. Therefore 60% of the payment has been made for the 60% of the work. The respondent did not receive the total agreed amount of Rs.10,45,738/-. Hence, it cannot be said that the respondent did not complete the work after receiving the full amount. Therefore, no deficiency of service is established. The two affidavits have also been placed on record by the respondents to substantiate that the work had been obstructed by miscreants. In the above circumstances, we find no jurisdictional error, illegality or infirmity in the order passed by the State Commission warranting our interference. The State Commission has rightly observed that the respondent completed 60% of the work, he had also not received not more than 60% of the estimated cost of the building from the petitioner and as such there cannot be any question of making further payment by the respondent to the petitioner or vice-versa. It was on the same ground the complaint was dismissed by the District Forum. The State Commission has rightly awarded the petitioner a sum of Rs.10,000/- as compensation. Accordingly, the revision petition is dismissed with cost of Rs.5,000/- (Rupees five thousand only).

Petitioner is directed to deposit the cost by way of demand draft in the name of ‘Consumer Welfare Fund’ as per Rule 10 A of Consumer Protection Rules, 1987, within four weeks from today. In case the petitioner fails to deposit the said cost within the prescribed period, then it shall be liable to pay interest @ 9% per annum till realisation.

List on 2nd May 2013 for compliance.

Sd/- .………………………………

[ V B Gupta, J.]

………………………………..

[Rekha Gupta]

Satish NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 3051 OF 2011 (From the order dated 23.05.2011 in Appeal No. 2688/2004 of the Haryana State Consumer Disputes Redressal Commission, Panchkula)

The Shiv Shakti Co-operative Group Housing Society, G.H.-15, Sector – 21-C/III, Faridabad – 121 001 (Haryana) (Through its General Secretary)

Versus

1. Haryana Urban Development Authority (HUDA) (Through its Administrator) Having its office at: Sector-12, Faridabad Haryana

…Respondent-1/Opposite Party (OP)

2. The Estate Officer Haryana Urban Development Authority Having its office at: Sector-12, Faridabad Haryana

…Respondent-2/Opposite Party(OP)

BEFORE

HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioner : Mr S.K. Sharma, Advocate

For the Respondent : Mr. R.S. Badhran, Advocate

PRONOUNCED ON 20 th March , 2013

O R D E R

This revision petition has been filed by the petitioner/complainant Society against the order dated 23.05.2011 passed by the Haryana State Consumer

Disputes RedressalCommission, Panchkula (in short, ‘the State Commission’) in Appeal No. 2688 of 2004 – HUDA & Anr. Vs. Shiv Shakti Co-operative Group Housing Society by which, while allowing appeal, order of District Forum allowing complaint was set aside and complaint was dismissed.

2. Brief facts of the case are that the petitioner/complainant Society was allotted one acre plot bearing No.GH-15 in Sector 21-C-III, Faridabad by OP/respondent. The complainant deposited the amount as and when demanded by the OP. Complainant wrote number of letters for handing over possession and ultimately, the complainant got letter dated 23.10.2000 for taking possession of the plot within two weeks. But, in fact, possession of the land was given to the complainant on 31.1.2001. It was further alleged that OP had not released permanent water connection and alleging deficiency on the part of the OP, filed complaint with the prayer to release permanent water connection, refund the interest already charged and not to charge extension fee and interest on instalments, etc. OP resisted claim and submitted that possession of the plot was delivered to the complainant after completing development work and prayed for dismisal of the complainant. Learned District Forum after hearing both the parties allowed complaint and directed OP/respondent to release permanent water connection immediately and provide all civic amenities and further directed to refund the interest already charged and not to charge extension fee and any type of interest and further directed OP to pay interest @ 12% p.a. and Rs.2,000/- as litigation cost and Rs.5,000/- to each member of the complainant Society as damages. Respondent filed appeal before the learned State Commission and learned State Commission vide impugned order dismissed the complaint as barred by time against which, revision petition has been filed.

3. Heard learned Counsel for parties on I.A. No.909 of 2013 as well as on the revision petition at admission stage and perused record.

4. As far as I.A. No. 909 of 2013 is concerned, the petitioner moved application for seeking permission to place on record orders of District Forum in similar cases. Orders of District Forum passed in other complaints are not relevant for disposal of this revision petition and they cannot be taken on record; hence, I.A. No.909 of 2013 is dismissed.

5. Learned Counsel for the petitioner submitted that learned State Commission has committed error in allowing appeal and dismissing complaint as time barred because possession given without developing civic amenities cannot be regarded as lawful possession and, as civic amenities had not been provided till today, complaint is within limitation; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the respondent submitted that, as the petitioner has already taken possession on 31.1.2001 and complaint has been filed almost after 3 years, learned State Commission has not committed any error in allowing appeal and dismissing complaint being barred by limitation; hence, revision petition be dismissed.

6. It is admitted case of the complainant that in spite of number of letters by the complainant to the OP for handing over possession, possession of allotted plot was not given and after much persuasion, complainant got letter dated 23.10.2000 for taking possession of the plot within two weeks. It is admitted case of both the parties that possession of the plot was given to the complainant on 31.1.2001 and complaint has been filed on 9.1.2004, which is clearly time barred as per provisions of Section 24-A of the Consumer Protection Act. If civic amenities had not been provided at the time of handing over possession, petitioner should have refused to take possession of plot. Learned State Commission has rightly referred judgement of Hon’ble Apex Court rendered in V.N. Shrikhande ( Dr. ) Vs. Anita Sena Fernandes – 2011 CTJ 1 (SC) (CP) and has rightly allowed appeal and dismissed complaint. Learned Counsel for the petitioner has placed reliance on 2000 (2) PLJ - Haryana Urban Development

Authority Vs. Smt. Shashi Bansal (Smt.) & Ors. delivered by Hon’blePunjab &

Haryana High Court in which, it was held that offer of possession cannot be made without development work. This citation does not help the petitioner, as in this case, possession was offered on 23.10.2000 and possession was taken on 31.1.2001 and after almost 3 years, complaint was filed. If civic amenities were not available, complainant should not have taken possession of plot and once the complainant had taken possession of the land, he must have filed complaint within a period of two years from taking possession. Learned Counsel for the petitioner also placed reliance on judgment delivered by this Commission in F.A. No. 207 of 1998

– M/s. Bhushan Kulkarni &

Associates Pvt. Ltd. Vs. Prakash Salshiv Deshmukh & Ors. in which it was held that even by consent order, possession of flat could not have been given without issuance of completion and occupancy certificate by the authorities. This citation is not applicable to the facts and circumstances of the case in hand, as in the present case possession of land for raising construction was given.

7. Thus, it becomes clear that impugned order passed by the learned State

Commission is in accordance with law, which does not call for any interference and revision petition is liable to be dismissed at admission stage.

8. Consequently, the revision petition filed by the petitioner is dismissed at admission stage with no order as to cost.

..………………Sd/-……………

PRESIDING MEMBER

..…………Sd/-…………………

( DR. B.C. GUPTA )

FIRST APPEAL NO. 183 OF 2007

(Against the order dated 02.02.2007 in CC No. A-95/98 of the

Delhi State Consumer Disputes Redressal Commission)

Ashok Kumar Sainia 11665/1, Satnagar, Karol Bagh New Delhi-110005

… Appellant

Versus

Delhi Development Authority Vikas Sadan Near INA Market New Delhi-110023

… Respondent

BEFORE:

HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT

HON'BLE MRS. VINEETA RAI, MEMBER

HON’BLE DR. S.M. KANTIKAR, MEMBER

For Appellant : Mr. B.D. Sainia, Advocate.

For Respondent : Ms. Madhumita Bhattacharjee, Advocate

Pronounced on 21 st March, 2013

PER VINEETA RAI, MEMBER

1. This first appeal has been filed by Ashok Kumar Sainia, Appellant herein and

Original Complainant before the Delhi State Consumer Disputes RedressalCommission

(hereinafter referred to as the State Commission) being aggrieved by the order of that

Commission, which had only partly accepted his complaint and had not given adequate compensation and relief as requested for from the Delhi Development Authority,

Opposite Party before the State Commission and Respondent in this first appeal.

2. FACTS IN THE COMPLAINT : The case of the Appellant is that he had registered himself under the “1982 Fifth Self-Financing Registration Scheme” announced by Respondent in May, 1982 and deposited a sum of Rs.10,000/- as registration deposit. He applied for a built up flat located in Vasant Kunj under Category-II in his application. Although he was one of the lucky ones in the draw of lots for allocation of Category-II flats located in Vasant Kunj, this was not communicated to him because of ulterior motives on the part of Respondent’s officers. He again, therefore, applied for Category-II flat in December, 1993 in response to a newspaper advertisement and as per draw of lots he was informed that a flat in Rohini (West Delhi) was allotted to him. On 20.04.1994 he sent a protest letter to the Respondent stating that he had never given West Delhi as an option in his application form and, therefore, his case be reconsidered and an allocation be made to him as per his option i.e. in the South Delhi area either in Sarita Vihar or Sheikh Sarai. If this was not possible, Respondent should refund the registration deposit of Rs.10,000/- alongwith interest due. Appellant also addressed a representation to the Lt. Governor bringing to his attention the conspiracy and malpractices adopted by unscrupulous employees of Respondent because of which he was deprived of having a flat in Vasant Kunj in 1983 although he had been declared lucky in the draw of lots for allotment of a flat in that area. Appellant also filed a complaint before the State Commission and requested that Respondent may be directed to allot Appellant a Category-II flat in one of the South Delhi localities preferably in Vasant Kunj at a price prevailing in the year 1983 and in case this is not possible, then he may be allowed to pay the current price of the flat on installment basis i.e. interest free installments spread over 15 years or so. Appellant also sought a compensation of Rs.7,62,300/- on account of deficiency and negligence as per the following:

“i. Compound interest of penal nature on deposit of Rs.10,000/- @ 18% per annum (From 1982 to the date of realization). The quantum for 16 years is evaluated at Rs. 1,31,000.00

ii. Refund of Registration money Rs.10,000.00

iii. Loss due to expenses incurred on conveyance/transport for taking several rounds of DDA for 16 years Rs.40,000.00

iv. Loss due to expenses incurred on various representations/ communications with the respondents Rs.5,000.00”

3. Respondent on being served filed a written rejoinder denying the above allegations. While admitting that the Appellant had got himself registered in the 5th Self-

Financing Scheme in the year 1982 under Category-II by depositing Rs.10,000/-, it was denied that he had been lucky in the draw of lots for a flat inVasant Kunj. The flat which the Appellant alleged was allotted to him was allotted to one Vidya Wanti Khurana being successful in the draw of lots dated 04.08.1982 and the demand-cum-allotment letter was sent to her and the possession of the flat was also taken by her. Appellant, however, insisted on the allotment of a flat in Vasant Kunj area, which was not possible since the scheme had been closed and no other flats were available in South Delhi. He was offered flats in two other areas which he failed to accept. Respondent further stated that Appellant did not raise this issue for 15 long years and filed a complaint before the State Commission only in 1998 in respect of a cause of action that had arisen in 1983. Therefore, the complaint was barred on the grounds of limitation.

4. The State Commission after hearing the parties and on the basis of evidence filed before it concluded that there was deficiency in service on the part of Respondent in not informing the Appellant about either the allotment or non-allotment of the flat in the Vasant Kunj area and directed that the amount of Rs.10,000/- deposited by him be returned alongwith 12% interest per annum on this amount from the date of its maturity till the date of the order. Apart from this, Respondent was also directed to pay

Rs.50,000/- towards compensation and cost of litigation. The relevant part of the order of the State Commission is reproduced: “7. In our view the complainant had only applied for a flat in the locality of Vasant Kunj and the offer of the flat made by the OP in some different area like Rohini or Paschim Puri was not as per his application nor as per his choice and therefore, the OP is guilty of deficiency in service in not informing the complainant about either the allotment or non-allotment of the flat in Vasant Kunj area.

8. Whenever there is any lapse on the part of OP in not sending the allotment letter, it is the duty of service provider to serve the allotment letter personally on the consumer and to ensure that the consumer has received the allotment letter and should not act merely on the premise that letter has been dispatched and the consumer might have received the same. This is very valuable right of the consumer.

9. It appears to be a case of double allotment against the FDR of the applicant because of assignment of the same number and since the scheme of SFS has already been closed and it is not possible for the OP to allot another flat to the complainant. Taking over all view of the matter and in the given facts and circumstances of the case, we hereby award interest @ 12% p.a. on the amount of Rs.10,000/- deposited by the complainant from the date of its deposit i.e. 1982 till the date of this order. This interest is on account of non-refund of this amount during this period as interest @ 7% being paid by the OP is not applicable in this case as the complainant has suffered due to the incorrect maintenance of the record with them. Over and above the OP shall also pay Rs.50,000/- towards compensation and the cost of the proceedings.”

5. Aggrieved by the order of the State Commission, the present first appeal has been filed.

6. Learned Counsels for both parties made oral submissions.

7. Counsel for the Appellant stated that the State Commission while accepting that there was deficiency in service failed to give the required relief in this case. On the other hand, the malafide and deficiency in service of the Respondent was apparent from the evidence on record. Counsel for the Appellant stated that after wrongfully and illegally denying the allotment of a flat in Vasant Kunj since he was successful in the draw of lots, Respondent failed to allot him a plot in South Delhi on two other occasions when he had applied for the same. Instead they allotted him flats in West Delhi, which was not his option. It was pointed out that even the State Commission had concluded that in respect of the flat in Vasant Kunj the problem occurred because of assignment of the same number to two people. Apart from this, despite specific request to return his registration deposit, Respondent failed to do so and instead replied to his letter after three years i.e. on 24.07.1997 (Exhibit A/46 before the State Commission) asking him to submit an affidavit that no allotment was made to him in 1983 atVasant Kunj so that further action could be taken for refund of his deposit. It was, therefore, again submitted that the compensation of Rs.7,62,300/- as requested for by the Appellant was fully justified.

8. Counsel for the Respondent on the other hand stated that the case was hopelessly barred on grounds of limitation since the cause of action arose in the year 1983 and the Appellant filed the complaint before the State Commission in the year

1998. No application for condonation of delay was filed before the State Commission and, therefore, the State Commission erred in entertaining the complaint. It was also stated that Appellant’s contention that he was denied allotment of a flat in Vasant Kunj because of malafide intentions on the part of some employees of the

Respondent is not correct and the correct position is that he was not successful in the draw of lots. Subsequently two other allocations were also made to him at Paschim Puri and Rohini, to which also there was no response, otherwise the refund of the registration deposit would have been made much earlier. It was stated that the

Appellant is now claiming allotment of a flat only in the Vasant Kunj area because prices have escalated manifold in this area and he wants to take advantage of the same.

9. We have heard learned Counsels for both parties and have also carefully gone through the evidence on record. We note that it is a fact that although the cause of action arose in the year 1983 i.e. when the draw of lots for the Vasant Kunj area under the Self Financing Scheme took place, Appellant filed a complaint before the State

Commission in the year 1998. Clearly this case is barred by limitation since as per

Section 24A of the Consumer Protection Act, 1986 a complaint can only be filed within two years from the date when the cause of action arose. When we specifically asked the Counsel for the Appellant to explain this delay, including why an application seeking condonation of delay was not filed before the State Commission, he stated that since the Appellant had been corresponding with the Respondent throughout this period and in fact it was the Respondent who delayed in giving a reply to Appellant’s letter, there was no delay in filing the complaint. It was filed within months of the

Respondent’s letter dated 24.07.1997 asking the Appellant to file an affidavit for refund of deposit. Prior to that Appellant was hopeful that he would be allotted a flat in South

Delhi as requested for. We are unable to accept this contention since it is well established that exchange of letters between the parties does not extend limitation under the Consumer Protection Act, 1986. On the other hand, there are a number of judgments of this Commission as also of the Hon’ble Supreme Court of India, including the most recent in State Bank of India v. B.S. Agricultural Industries (I) [AIR 2009 SC 2210], that Section 24A of the Consumer Protection Act, 1986, which prescribes limitation period for admission of a complaint, is peremptory in nature and requires consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action.

10. Keeping in view the facts of this case and respectfully following the judgment of the Hon’ble Supreme Court in State Bank of India v. B.S. Agricultural Industries (I)

(supra), we are unable to uphold the order of the State Commission since the complaint is clearly barred by limitation. The order of the State Commission is, therefore, set aside. The present first appeal stands dismissed. No costs.

(ASHOK BHAN, J.)

PRESIDENT

(VINEETA RAI)

MEMBER

(DR. S.M. KANTIKAR)

MEMBER

Mukesh NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

(From the order dated 03.01.208 of the Uttar Pradesh State Consumer Disputes Redressal Commission, Lucknow in Appeal no. 536/SC/2005)

K N Kandpal Son of Shri S R Kandpal Resident of A 206 Rajendra Nagar Bareilly Present Address 17 C Vaibhav Suncity V istaar P S Izatnagar

Petitioner

Versus

1. M/s Alliance Builders and Contractors Ltd. Office Neelkhanth Flats Stadium Road Manging Director Shri A S Bagga P S Baradari, Bareilly

2. Shri Ramandeep Singh Son of Shri Gurucharan Singh Director Alliance Builders and Contractors Ltd Neelkhanth Flats, Stadium Road P S Baradari, Bareilly

Respondent

BEFORE:

For the Petitioner Mr S K Ghosh, Advocate with Ms Rupali Ghosh, Advocate

For the Respondent Mr Nikhil Jain, Advocate

Pronounced on 4 th April 2013

REKHA GUPTA

Revision petition no. 1885 of 2008 has been filed under section 21 (b) of the Consumer Protection Act, 1986 against the order dated 03.01.2008 passed by the Uttar Pradesh State Consumer Disputes Redressal Commission, Lucknow (‘the State Commission’) in appeal no. 536/SC/2005 and 591/SC/2005.

The brief facts of the case as per the petitioner are as follows:

The petitioner resides along with all members of his family at A – 2006, Rajendra Nagar, Bareilly. He required a house. In order to purchase the house, the petitioner contacted respondent no. 1 who builds houses in Sun City Extension. A booklet was given about this house in which salient features of the houses were described. Respondent no. 1 assured the petitioner that best quality material would be used in the house. On this assurance, the petitioner agreed to purchase a house no. 20 C Vaibhav in Suncity Extension. House no. 20 C Vaibhav was changed as house no. 17 C Vaibhav by the respondent.

Respondent no. 1 is Alliance Builders and Contractor Ltd., who is engaged in building and selling of houses. Respondent no. 1 who is a builder who carry out the sale of plots and execute the construction work on the sold plots through their Managing Director, Director, Engineers etc., who are respondents no. 1, 2 and 3 in petition. Respondent no. 1 is responsible for the works.

Agreement was executed between the petitioner and respondent no. 1 for the sale of a house 20 C Vaibhav which was later on changed as 17 C Vaibhavat a cost of Rs.6,15,000/-. The cost of the plot was for Rs.33,414/- and the cost of building material and labour charges was Rs.5,81,586/- and in total Rs. 6,15,000/- was agreed to be paid by the petitioner to the respondent no. 1 for the plot and the cost of construction. The petitioner is the consumer of the respondent in respect of house no. 17 C Vaibhav.

The petitioner paid Rs.5000/- as advance to the respondent no. 1 on 16.02.2009 and after that he paid Rs.55,000/- to respondent no. 1. In total Rs.6,00,000/- was paid to the respondent no. 1 afterwards the sale deed of the plot whose area was 167.07 sq meter was executed and the petitioner got its possession.

On 31.05.1999 an agreement was made between the petitioner and respondent no. 1 according to which the respondent no. 1 was to construct the house on plot no. 17 C Vaibhav. An amount of Rs.5,81,586/- was to be paid by the petitioner for the construction of the house and the respondent no. 1 having got the possession from the petitioner, was to construct the house within 10 months and returns for the possession to the petitioner.

The petitioner transferred the possession of the house no. 17 C Vaibhav to the respondent no. 1 for construction on 31.05.1999. Then after 23 months from 31.05.1999 the respondent handed over the possession of the house 17 C Vaibhav on 19.05.2001 to the petitioner. During this period the petitioner had to make alternative residential arrangements. After getting the possession of house no. 17 C Vaibhav on 19.05.2001 and coming into it to live in, the petitioner come to know that the building material which was used in the construction was of very bad and cheap quality. The cement, saria, iron, timber, bricks etc., which were used in the construction of floor, walls, doors, chaukhats, roof, outlets of water, road drainage etc., were of bad and cheap material, due to which house no. 17 C Vaibhav was not living worthy and could fall down at any time. There was continuous danger for the lives of the petitioner and the members of his family. The petitioner made verbal and written complaint about these defects several times but the respondents did not pay any attention to any complaint of the petitioner and the respondent did not remove the above said defects.

“ After living in house no. 17 C Vaibhav, the petitioner came to know that the respondent no. 1 used inferior and cheap building material in the construction of house, so the cracks occurred on the roof of the house. Due to cracks in the roof, it was leaking down and water leaks from these cracks due to which the water stored inside the house 17 C Vaibhav. The house is not living worthy. The walls of the house are downwards. The walls of the house are going down because bad and cheap saria, cement and cement with much sand and was under in the foundation and much sand was used in the plaster made on the walls so that the plaster is coming down from the walls and because of the walls going down. There is danger of roof falling. Surkhi, Chuna, gatta were to be provided on the roof of the house no. 17 C Vaibhav which were not provided by respondent no.1. So that water leaks from the roof because of cracks in the roof, it may fall down at any time which is not be repaired. There is a need of constructing the house afresh after dismantling it. The cracks of the roof are not fit to be repaired. Inferior and cheap timber has been used in the chaukhat, windows, doors etc, of the house no. 17 C Vaibhav so that due to rain and winter effect, door and windows do not shut properly. These do not get their place due to gaps and do not shut properly. The foundation being not good and due to use of bad and cheap cement and bricks the walls are going down into the earth which may fall at any time. Besides it, the floor of the house is not labelled because before flooring the inner side was not labelled so that the water does not flow properly and the water is stored here and there on the floor. Coloured chips were not used in the floor. More sand was used in the plaster on walls and cement was used in less quantity. Because of the sand being in more proportion the cement on roof and walls did not set properly. Sand is coming out. Two gates were to be provided in the house no. 17 C Vaibhav which only one small and light in weight gate was provided. The electric wiring and switches of cheap and inferior quality were used. The floor was incomplete and unlevelled so that water is stored and the blocks are shrinking. The floor is breaking. As such, the construction of the house 17 C Vaibhav was made of inferior building material which is not to be repaired. There is a need of dismantling it and reconstructing it, so that the petitioner is suffering mentally, economically and physically. The house hold things which are kept inside the house are decaying. The house of the petitioner 17 C Vaibhav was constructed by the respondents, inside which the facility which are to be provided in this society, were not provided. Due to cheap and inferior building material cement etc., used in the construction, cracks have developed in the roof and it has leaned down, water is leaking. The house may fall down at any time. The plaster of the walls is coming out. Because of it the house needs to be reconstructed, for which the existing construction is to be dismantled, as such an amount of Rs.6,55,000/- will be required for its reconstruction the construction of the house is very bad because of lacking service, carelessness and using cheap and inferior building material, paint, steel, timber etc. and is not living worthy for the petitioner and the members of his family as it may fall at any time due to cracks in the roof and its leaking. So that there is a need of reconstruction for which the petitioner made complaints to the respondents several times, but they do not pay any attention and they are using delay tactics. Because of it, the petitioner has to file this complaint before the Hon’ble Forum. An expert time of Rs.6,55,000/- is estimated in dismantling the house and its reconstructions. This may be paid by the respondents to the petitioner”.

The respondents have however, has stated in their written statement that “the statement of the petitioner that the house no. 17 C Vaibhav was changed in place of 20 C Vaibhav Suncity Extension by the respondent, is completely wrong and baseless for which the petitioner, himself requested the respondent for change of house no. 17 C in place of 27 C, the respondents accepted the request of the petitioner. There is no fault of the respondents and accordingly an agreement for 17 C Vaibhav was executed between the petitioner and respondents.

The statement of the petitioner that material used in the construction of the house was of cheap and inferior quality is completely incorrect and baseless, which the fact is that all the material used in the construction of house is of high quality and standard company. The statement of the petitioner that he made any complaint and the respondent did not pay any attention is completely false and baseless, which the fact is that the petitioner wants to create pressure on this petition and blackmail us.

As per the agreement executed between the petitioner and the respondents, the responsibility of the respondents was up to the roof lavel. After it the responsibility of the roof treatment was of petitioner. The petitioner has not done it till date and the petitioner is holding responsible for it to the respondent for which the petitioner has no right.

The statement of the petitioner that inferior quality saria, cement and much sand in proportion etc., was used in the foundation, is incorrect and baseless.While the respondents got all the construction done with high quality material by the standard contractors under the supervision of skilled engineers.

The statement of the petitioner that electric wiring and switches were used in the house is of very cheap and inferior quality. While the respondents provided all the electric wiring and switches of standard quality. Besides, here the most important fact the respondents have made about 1000 houses under this scheme and no complaint has been received from any one. Only the petitioner and a few other person of his group have filed this petition because of their vested interests based on false facts and just to trouble the respondents. Because all these persons collectively have threatened if the respondents do not admit their statements then they will file the suit.

According to the agreement executed between the petitioner and respondents, the house was to be white washed inside it with dry distemper but at the request of the petitioner the respondents white washed it with oil bond paint without charging any extra expenditure while the cost of oil bond painting was three times more than dry distemper.

The statement of the petitioner that this house may fall down at any time and he has to reconstruct it is completely false and baseless. The house in question is completely up to the mark and there is no need of its reconstruction and repair. As far as the roof treatment is concerned, it is the responsibility of the petitioner which he did not carry out knowingly till date for which the respondent is not bound”.

The District Consumer Disputes Redressal Forum, I, Bareilly (‘the District Forum’) has discussed the case at length in their judgment dated 28.02.2005. After hearing the counsels and going through the records, as also the reports given with regard to the house both by the petitioner and the respondents. The District Forum came to the following conclusion:

“The statement of the petitioner that the house way fall down at any time, does not appear to be true. This also does not appear to be true that there is a need of reconstruction of the house after dismantling it. The report of the architect which has been filed by the petitioner does not mention that the defect of the house are beyond repair. Shri Rukmesh Kumar has mentioned that cracks in the walls have occurred due defects in the foundation and the floor has shrunk. The water out let on the roof is not proper. The work was not executed as per PWD norms. The roof treatment was not carried out. Deep cracks in the slabs occurred due to storage of water. In the opinion of forum, all these defects are repairable. The petitioner could not prove that cheap and inferior quality building material was used in the construction. But it is proved that cracks in the roof and walls have occurred due to not providing roof treatment and for its repair, the respondent is responsible. In the opinion of the forum the expenditure on repair maybe Rs.40,000/- for which the petitioner is entitled to get the compensation. Besides it, the petitioner is entitled for Rs.5,000/- as cost of the suit.

The respondent did not provide roof treatment even after realizing Rs.1,26,400/- for it from the petitioner due to which cracks occurred in the roof of the house. Due to storage of water, cracks occurred in the walls, the flooring was found defective. Because of water outlet not being proper on the roof, cracks occurred in the linter joints. In the opinion of the forum, the respondent is responsible to pay Rs.40,000/- to the petitioner for the repair of all these defects. Through witnesses it is provided that the petitioner asked the respondent several times to remove these defects but they did not pay any attention to it. The petitioner is entitled to get Rs.5,000/- from the respondent on the cost of the suit, and he is entitled to get back Rs.1,26,400/- from the respondents”.

The District Forum directed that “the petition is decided against the respondents and the respondent is directed to refund Rs.1,26,400/- which he realised from the petitioner for roof treatment but he did not execute the roof treatment, so that the petitioner may carry out this work. The respondent is also directed to pay Rs.40,000/- to the petitioner as compensation to remove the defects in the construction of the house and the rent @ 2,500/- for 13 months should be paid to the petitioner. The order should be complied within a month otherwise interest @ 9% per annum on the whole amount will be paid by the respondent. The respondent will also pay Rs.5,000/- to the petitioner as cost of the suit”.

Not satisfied by the order of the District Forum, the petitioner has filed an appeal before the State Commission. The State Commission after hearing the counsels for the parties and perused the records and observed as under:

“It is also significant to note that the complainant had entered into possession of the house in question on 19.05.2001 but did not lodge any protest at the time of taking possession on that day, although a deed was executed certifying delivery of possession. Not only this but also not within a reasonable time any notice was served upon the builders so as to bring to their notice the details of the alleged defects of the house and ask them to remove the same. The learned counsel appearing for Shri Kandpal made a reference to a letter dated 15.07.2002 which was despatched to the builders. This notice was sent 14 months after the delivery of possession and although many defects were pointed out but not an iota of mentioned was made about the roof treatment. In case the builders failed to carry out the roof treatment in accordance with the terms and conditions of the agreement, it should have certainly being recited in this letter.

The complaint was filed more than three years after the delivery of possession and prior to the filing of the complaint, no report of an architect had been obtained in support of the complainant’s version. A report which was procured during the pendency of the complaint (Paper nos. 15o to 154) was got without any instruction from the District Consumer Forum. It was a one sided report submitted without seeking any instructions from the District Consumer Forum. Even this report does not say that the house had been rendered to a pitiable condition within a short span of 3-4 years. It simply refers to certain defects in the plaster on walls but the defects do not appear to be so serious as to cause any threat to the very existence of the house. If there was any seepage of water through the roof, it could be very well repaired and this seepage either in the walls or the roof after four years of the house had been delivered cannot be subscribed to the defects in construction activity so as to hold the builders responsible either for repair of these defects or for awarding damages. In this context, it would be relevant to observe that if there was any defect in the roof, the water would have percolated during the first rainy season of 2001 but there is nothing on record to show that within the first year of the complainant’s occupation of the house any such defects came to light. We are, therefore, not convinced that the seepage in the roof or cracks in the wall or any other repairs required after four years of the delivery of the possession would be subscribed to the builder for being asked to either carry out the repairs or remove the defects. Every building is subject to the adverse effects of the weather which includes air, moisture and sunshine and if any decay happens on account of these adversaries, the occupant of a building is expected to look after them and carry out repairs. A builder cannot be held responsible to remove all the defects for all times to come. In our considered opinion, neither there is any warranty nor a guarantee of the construction work. If a house resist the water of rains, bright sun, moisture hot and cold winds for a period of one year, it can be said to have fulfilled all the qualities of a good construction. In the case in hand, the house of the complainant did not develop any defect for 14 months as can be derived from the above discussions, therefore, the builders cannot be asked either to refund the money allegedly assigned to the roof treatment or to carry out the repairs pointed out.

In the result, the appeal of Shri K N Kandpal fails and is hereby dismissed. The other appeal filed by M/s Alliance Builders and Contractors Limited is hereby allowed and the judgment in appeal quashed. Resultantly the complaint of Shri K N Kandpal is hereby dismissed”.

Hence, this present revision petition.

The main grounds given are as follows:

- the State Commission erroneously recorded that the estimate of cost of construction issued by the respondents is a forged and fictitious document. Without appreciating that the said document was issued by the respondents, which were countersigned by their Chartered Engineer. That in the said document the estimate quoted by the respondent for 5 cm thick line concrete terracing on the roof of the brick ballast with white lime and surkhi in ratio of 100:32:16 and including supply of all materials labour and tools and paints etc., required for proper completion of the work was Rs.1,26,400/-. Hence, the State Commission erroneously and in a perverse manner, ignoring the documents on record, observed, “……. We would be at our dismay to observe that a sum of Rs.1,26,400/- was earmarked whereby for roof treatment of house, the estimated value of which was agreed to be as Rs.6,15,000/-“. And in and erroneous manner set aside the order passed by the District Forum awarding the compensation for not undertaking the roof treatment by the respondent. - the State Commission committed gross error by totally ignoring the report of the advocate Commissioner, the photographs and the videography which clearly established the deficiency of service of the respondent in constructing the house of the petitioner.

- the State Commission has committed gross error of law by observing in the impugned order that there was no warranty or guarantee of the construction work. It is submitted that the instant case is a classic example of the principle of res ipsa loquitor. The condition of the house as evident from the report of the Architect, the Advocate Commissioner, and the photograph produced before the District Forum goes to prove beyond any doubt that there is deficiency in service on the roof of the respondent in constructing the house and the respondent used substandard and poor material for the construction of the house.

- the State Commission committed grave error by observing that the since the house did not develop any defect for 14 months the builder cannot be asked either refund the money allegedly assigned to the roof treatment or to carry out the repairs. It is submitted that the aforesaid observation is not only perverse but the same contrary to the records of the case. That the petitioner have been complaining to the respondent about the poor quality of construction immediately after occupying the house, and secondly a house under no circumstances can develop cracks on the roof within a period of 14 months unless the construction is of poor quality and substandard materials for constructions was used. It is submitted that manual 2003 issued by Government of India the minimum life of land bearing structure is all least 55 years.

We have heard the learned counsel for the parties and carefully gone through the records of the case. Counsel for the petitioner insisted that the house was very poorly constructed. He however, could not explain why the written complaint regarding defects in the house were made after fourteen months. Though he kept on referring to a letter purportedly sent to the respondent in the year 2001, the same could not be produced. He could not also confirm whether the same had been filed before the District Forum. It is an undisputed fact that with reference to additional affidavit filed on behalf of the petitioner that the said premises were handed over to the petitioner on 19.05.2001. Petitioner stated that he made repeated complaints to the respondents however, there is no written evidence of the same. The first complaint is dated 15.07.2002 wherein the petitioner has written to the respondent as follows:

“Dear Sir,

This goes out to inform you that House no. 17 – C Vaibhav, Sun City, Vistaar was occupied by the undersigned after full payment formalities.

I am facing several problems in the house now, viz., widespread cracks under and over the roof causing threat to the occupants. The cracks are getting wider and thicker and even a little rain that poured down last month has ruined the ceiling fans and electrical wirings and has caused the water to ooze out. Walls and floors on the other hand, too are showing the signs of dilapidation. At several places loose plaster has lost its grip and few squares of marbled floor have been shaking separately without any firmness with the rest of the part.

Although this has been to the notice to the concerned authorities earlier, but a deaf ear was being offered to the reminders that followed. A staff team of yours did have a look at the condition and some repair work has also been accomplished by fits and starts, but it seems that they have really not gone deep into the groove of the problem and a lot more needs to be done for rectifying the prevailing discrepancies.

I, therefore, earnestly hope you will look after the matter seriously and get the needful done at the earliest to avoid any further damage and danger. An early reply and favourable action will be appreciated”.

It is also evident from the records that the complaint before the District Forum was filed on 04.06.2003 well after the two years period of limitation from the date he took possession. It is also a fact that all the reports of experts produced by the petitioner were those appointed by him. There is no evidence on record of any expert appointed by the District Forum. All the reports also were with reference to the conditions of the house in 2004, i.e., four years after he got the possession. In this context we would agree with the State Commission that if there was any defect in the roof, the water should have percolated during the first rainy season of 2001 but there is nothing on record to show that within the first year of the complainant’s occupation of the house any such defects came to light. Further, that every building is subject to the adverse effects of the weather which includes air, moisture and sunshine and if any decay happens on account of these adversaries, the occupant of a building is expected to look after them and carry out repairs. A builder cannot be held responsible to remove all the defects for all times to come. As neither is there any warranty nor a guarantee of the construction work in perpetuating. If a house resists the water, rain, bright sun, moisture, hot and cold winds for a period of one year it can be said to have fulfilled all the qualities of a good constructions. In the case in hand, there is nothing on record to show that the house of the complainant had developed any serious defects in the first fourteen months. Even in his complaint, before the District Forum, while the petitioner has given elaborate details of defects and the so called examples of poor construction he has not mentioned the dates on which these were brought to the notices of the respondents and action taken by them. He has also given no details of complaints in writing or reference to any letter addressed to the respondents in this regard before 15.07.2002. He has by his own admission admitted that he has been residing in the house since 19.05.2001, so it is indeed surprising to note that the house lived in by the petitioner and his family since 19.05.2001, was in such a deplorable condition and yet no repairs had been carried out by the petitioner to keep his house in a liveable condition.

As per the report dated 18.03.2004 of Ms Abha Agrawal, Addl. Commissioner. “The switches were not fixed properly and were not working satisfactorily. The out let of the water was not found proper. Water was stored in the bathroom. The condition of windows and doors were not found proper. The doors of the bed room were found unfixed. Termite was seen in the widows. The floors of the room were found downed so that the glass fitted in the floor struck the feet. Water was found stored here and there on the floor. Water taps were found loose. The drains outside the house was found flowed the out let of the water was found abstracted”. This only gives evidence of a house which has not been given adequate maintenance and repairs by its owners.

In view of the foregoing reasons we find that there is no jurisdictional error, illegality or infirmity in the order passed by the State Commission warranting our interference. The revision petition is accordingly dismissed with cost of Rs.10,000/- (Rupees ten thousand only).

Petitioner is directed to deposit the cost by way of demand draft in the name of ‘Consumer Welfare Fund’ as per Rule 10 A of Consumer Protection Rules, 1987, within four weeks from today. In case the petitioner fails to deposit the said cost within the prescribed period, then it shall be liable to pay interest @ 9% per annum till realisation.

List on 10th May 2013 for compliance.

..……………………………… [ V B Gupta, J.]

Sd/- ……………………………….. [Rekha Gupta] Satish NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 911 OF 2013 (From the order dated 19.02.2013 in Appeal No.FAIA 2908-2914/2012 in FA 731- 737/2012 of the A.P.State Consumer Disputes Redressal Commission, Hyderabad)

I.A. No. 1651/2013 (Stay)

M/s. Veenus & S.V. Projects Flat No.504, Raghavendra Golden Heights, D. No.2-2- 12/7, D.D. Colony, Bagh Amberpet, Hyderabad – 13, Andhra Pradesh Represented by its Managing Partner Sri P. Ravi Kumar

2. T. Venkat Reddy, Partner M/s. Veenus & S V Projects, Flat No.302, B Block, Laxmi Meadows, Lakdikapool, Saifabad, Hyderabad, Andhra Pradesh

…Petitioners/Opposite Parties (OPs)

Versus

A. Saida Reddy S/o Late Kasi Reddy R/o Flat No. G-1, Rohit Tower, Street No. 8, Vidyanagar, Hyderabad – 44 (A.P.) … Respondent/Complainant

I.A. No. 1652/2013 (Stay)

…Petitioners/Opp. Parties (OP)

Versus

D. Narasimha Reddy S/o Late D. Bal Reddy R/o H. No.11-451/1, Saroornagar Hyderabad (A.P.) … Respondent/Complainant

I.A. No. 1653/2013 (Stay)

Versus Jinka Nagaraju S/o J. Narayana Swamy R/o H. No.301, Shyama Gayatri Nilayam, Soubhagyapuram, Mohana Nagar Kothapeta, Hyderabad (A.P.)

I.A. No. 1654/2013 (Stay)

M/s. Veenus & S.V. Projects Flat No.504, Raghavendra Golden Heights, D. No.2-2- 12/7, D.D. Colony, Bagh Amberpet, Hyderabad – 13, Andhra Pradesh Represented by its Managing Partner Sri P. Ravi Kumar 2. T. Venkat Reddy, Partner M/s. Veenus & S V Projects, Flat No.302, B Block, Laxmi Meadows, Lakdikapool, Saifabad, Hyderabad, Andhra Pradesh

Versus V.K. Ashok S/o V. Radhakrishna Murthy, R/o Flat No. 102, Sai Rashmitha Apartments Street No. 9, Balkampeta, Gandhi Nagar, Hyderabad (A.P.)

I.A. No. 1655/2013 (Stay)

Versus P. Sridhar S/o P. Koteswara Rao R/o Plot No. 484, Gayatri Nagar, Borabanda, Hyderabad (A.P.)

I.A. No. 1656/2013 (Stay)

Versus B. Babu Rao S/o SV Subbaiah R/o H. No.1-1287/11/7, Bapunagar Chikkadpalli, Hyderabad (A.P.) … Respondent/Complainant

I.A. No. 1657/2013 (Stay)

Versus 1. J. Pratap S/o J. Umamaheswara Rao, 2. J. Nagendra S/o J. Umamaheswara Rao 3. J. Ashok S/o J. Umamaheswara Rao R/o Flat No. 30-HIG, Block-2, Phase V, KPHB Colony, Hyderabad (A.P.) … Respondent/Complainant

BEFORE HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

For the Petitioners : Ms. Filza Moonis, Advocate

PRONOUNCED ON 4 th April , 2013

O R D E R

All these revision petitions arise out of a single order of learned State Commission and; hence, decided by a common order.

2. These revision petitions have been filed by the petitioners/OPs against the order dated 19.02.2013 passed by the Andhra Pradesh State Consumer DisputesRedressal Commission, Hyderabad (in short, ‘the State Commission’) in FAIA 2908-2914/2012 in F.A. No. 731 – 737/2012 – A. Saida Reddy Vs. M/s. Veenus & S.V. Projects & Anr. by which, application filed by the respondents for withdrawal of money was allowed.

3. Brief facts of the case are that the complainants/respondents filed complaints before the District Forum, which were allowed and petitioners/OPs were directed to return original sale deed and pay Rs.10/- per sft. per month from 13.3.2011 along with Rs.50,000/- as compensation for mental agony and Rs.2,000/- as cost of the complaint. Petitioner filed appeal before the learned State Commission and learned State Commission passed the following order: “ Heard both sides. The opposite party, the builder/developer preferred this appeal the order of the district forum directing him to pay Rs.10/- per square feet from 13.3.2011 together with compensation of Rs.50,000/- and costs of Rs.2,000/-.

The learned counsel for the appellant/opposite party contended that in fact the order would not sustain, in the sense that they are ready to construct the apartments and therefore, the order was unjust. Equally the learned counsel for the complainant contended that the agreement was executed on 14.3.2008 and till now permission was not even obtained from GHMC. There was no progress in the construction of the apartments. At any rate, by issuing notice he had forfeited the deposit in terms of agreement. The District Forum has only ordered payment of Rs.10/- per square feet besides compensation and costs from 13.3.2011 apart from return of original sale deed. All these questions would be considered at the time of hearing. We do not intend to pre-judge the very issues raised by both sides, suffice it to say in the interests of justice a stay order can be passed which is equitable and just.

In the circumstances, the opposite party is directed to deposit half of the amount awarded by the district forum which includes the statutory amount within one month from today before the A.P. State Commission. The learned counsel for the complainant requested that he be permitted to withdraw the said amount. Considering the circumstances, we are of the opinion that the learned counsel for the complainant can as well move an application for withdrawal of the amount, so that the same can be adjudicated on merits”.

4. Complainants moved application for withdrawal of half of the amount awarded by the District Forum inclusive of statutory deposit made by the OPs. Petitioners contested application and learned State Commission vide impugned order allowed withdrawal of amount lying with this Commission along with interest on furnishing undertaking that in case appeals are allowed, the amounts withdrawn will be re- deposited before the Commission.

5. Heard learned Counsel for the petitioners at admission stage and perused record.

6. Learned Counsel for the petitioners submitted that learned State Commission ought not to have allowed withdrawal of amounts deposited by the petitioners, as complainants have already forfeited Rs.5,00,000/- towards refundable deposit and Rs.7,00,000/- towards non-refundable deposits and further submitted that if appeals of the petitioners are allowed by the learned State Commission, it would be difficult for the petitioners to recover this amount from the complainants/respondents. As such, learned State Commission has committed error in passing impugned order, which may be set aside.

7. Learned State Commission stayed operation of the impugned order passed by District Forum subject to depositing half of the amount awarded by the District forum. In compliance to this order, OP deposited amount. Learned State Commission vide impugned order allowed withdrawal of the amount lying with this Commission subject to furnishing undertaking to refund of money in case appeals are allowed.

8. Learned Counsel for the petitioners admitted that so far construction activity has not started on the site and in such circumstances, order permitting withdrawal of amount deposited by OP cannot be said to be unreasonable order, particularly, when order has been passed subject to furnishing undertaking in case appeals are allowed, complainants will re-deposit amount with the Commission. We do not find any illegality, irregularity or jurisdictional error in the impugned order and revision petition is liable to be dismissed at admission stage.

9. Consequently, revision petitions filed by the petitioners are dismissed at admission stage with no order as to costs.

..………………Sd/-……………

PRESIDING MEMBER

..……………Sd/-………………

( DR. B.C. GUPTA )

REVISION PETITION NO. 2195 OF 2012 (From the order dated 6.03.2012 in Appeal No. 53/2011 Rajasthan State Consumer Disputes Redressal Commission, Jaipur (Circuit Bench at Kota)

Ramesh Chand Chourasiya S/o Nand Kisshor Chourasiya R/o 1541-A, R.K. Puram Kota (Rajasthan)

Versus Wazid Ali S/o Abdul Hamid R/o Narain Paan Wale Ki Gali, Bajaj Khana Kota, Prop. Nio Builders, Bajaj Khana, Kota (Rajasthan)

… Respondent/Opp. Party (OP)

BEFORE

For the Petitioner : Mr. M.P. Saxena, Advocate

O R D E R

This revision petition has been filed by the petitioner/complainant against the impugned order dated 6.3.2012 passed by the Rajasthan State Consumer DisputesRedressal Commission, Jaipur (Circuit Bench at Kota) (in short, ‘the State Commission’) in Appeal No. 53 of 2011 – Wazid Ali Vs. Ramesh Chand Chourasiya by which, while allowing appeal, ex-parte judgment passed by the District Forum was set aside and parties were directed to appear before District Forum.

2. Brief facts of the case are that petitioner/complainant entered into an agreement with OP/respondent for construction of a house and paid Rs.3,61,000/-, whereas only Rs.2,10,000/- were spent in construction. Alleging deficiency on the part of respondent, petitioner filed complaint before the District Forum on 14.8.2008. Learned District Forum proceeded ex-parte against OP vide order dated 30.8.2010 and ex-parte judgement was passed on 1.2.2011. Application filed by the OP for setting aside ex- parte decree was dismissed by District Forum vide order dated 1.2.2011. OP filed appeal against ex-parte judgement of District Forum before learned State Commission and learned State Commission vide impugned order set aside the ex-parte judgement and remanded the matter back to the District Forum against which, this revision petition has been filed.

3. Heard learned Counsel for the petitioner at admission stage and perused record. 4. Learned Counsel for the petitioner submitted that learned State Commission has committed error in setting aside ex-parte judgment passed by learned District Forum; hence, revision petition be admitted.

5. Perusal of impugned order reveals that notice of complaint to OP was not sent by District Forum, but was sent by complainant himself, which was not in accordance with law and in such circumstances, learned State Commission has not committed any error in setting aside ex-parte judgement. We do not find any infirmity, illegality or jurisdictional error in the impugned order and revision petition is liable to be dismissed at admission stage.

6. Consequently, revision petition filed by the petitioner is dismissed at admission stage with no order as to costs.

..………………Sd/-……………

PRESIDING MEMBER

..……………Sd/-………………

( DR. B.C. GUPTA )

REVISION PETITION NO. 2766 OF 2012 (From the order dated 10.05.2012 in S.C. Case No.FA/280/2011 of the West Bengal State Consumer Disputes Redressal Commission, Kolkata)

1. Smt. Sonamoni Biswas (D/o Sri Priya Shankar Biswas)

2. Smt. Bandana Biswas (W/o Sri Priya Shankar Biswas) Both residing at F/05.001, Peerless Nagar, Panihati, 29 F, B.T. Road, P.S. Khardah Kolkata 700114 West Bengal

… Petitioners/Complainants

Versus

1. Peerless Developers Ltd. 13 A, Dacres Lane, 4th Floor., P.S. Hare Street Kolkata 700069 West Bengal

2. Authorized Person representing Peerless Developers Ltd. Site Office, Peerless Developers Ltd. Peerless Nagar, Block ‘H’ 29 F, B.T. Road, Panihati, P.S. Khardah Kolkata 700114 West Bengal

…Respondents/Opp. Parties (OP)

BEFORE

For the Petitioners : Mr. Sanjeev Kumar Varma, Advocate

For the Respondents : Mr. Tapan Kr. Datta, Advocate

O R D E R

PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER This revision petition has been filed by the petitioners/complainants against the order dated 10.05.2012 passed by the West Bengal State Consumer Disputes RedressalCommission, Kolkata (in short, ‘the State Commission’) in S.C. Case No. FA/280/2011 – M/s. Peerless Developers Ltd. Vs. Sonamoni Biswas & Anr. by which, appeal filed by the appellants/present respondents was allowed and order of District Forum allowing complaint was set aside and complaint was dismissed.

2. Brief facts of the case are that complainant/petitioner booked a flat with OP/respondents on 16.8.2004 and paid Rs.50,000/- towards consideration of the flat. Agreement was executed on 28.9.2004 between the parties and the complainant paid full price of the flat and deed of conveyance was executed by OP in favour of the complainant on 29.3.2007 and possession was received by the complainant on 9.4.2007. After taking possession of the flat, complainant noticed some defects in the flat and took up the matter with the OP over telephone and also by personal visits to the office of the OP. Complainant also wrote letter on 16.7.2007 for redressal of grievances. As the grievances were not sorted out, complainant alleging deficiency on the part of OP filed complaint. OP resisted claim. Learned District Forum after hearing both the parties, allowed complaint and directed OP to remove defects or pay Rs.1,58,000 as estimated cost of repair along with 18% p.a. interest and further directed to pay a sum of Rs.60,000/- as compensation. OP filed appeal and learned State Commission vide impugned order allowed appeal on merits as well as on the ground that complaint was time barred against which order, this revision petition has been filed.

3. Heard learned Counsel for the parties at admission stage and perused record.

4. It is admitted case of the parties that petitioner obtained possession of the flat on 9.4.2007 in pursuance to deed of conveyance executed on 29.3.2007. It is also admitted case of the complainant that in April, 2007, he pointed out defects in the flat to OP on telephone as well as by personal visits. It is also admitted case on the part of complainant that letter pointing out defects was written by the complainant to the OP on 16.7.2007. It is also admitted fact that complaint was filed before the District Forum on 19.4.2010 meaning thereby after almost 3 years of taking possession, whereas complaint was required to be filed within a period of 2 years. Learned Counsel for the petitioner has not moved any application under section 24A of the C.P. Act for condonation of delay before the District Forum and in such circumstances, complaint filed by the complainant is time barred and learned District Forum committed error in allowing complaint, but learned State Commission has not committed any error in allowing appeal and dismissing complaint, as time barred.

5. Learned State Commission has also observed by detailed discussion that as per joint inspection report, flat was habitable and in sound condition and no repairing was required and learned State Commission has rightly allowed appeal and dismissed complaint on merits as well as on the ground of complaint being time barred. We do not find any illegality, infirmity or jurisdictional error in the impugned order and revision petition is liable to be dismissed at admission stage.

6. Consequently, revision petition filed by the petitioner is dismissed at admission stage with no order as to costs.

..………………Sd/-……………

PRESIDING MEMBER

..……………Sd/-………………

( DR. B.C. GUPTA )

ORIGINAL PETITION NO. 22 OF 2001

Twin Tower Co-op. Hsg. Society Ltd. Manish Park, Rajmata Jijabai Marg, Pump House, Andheri (East), Mumbai 400093

……….Complainant

Versus

1. M/s. Manish Vijay Enterprise Having their office at Behind Manish Park, Opp. Parsi Salcette Off Veer Jigamata Marg, Pumphouse Andheri (East), Mumbai 400093

2. M/s. Jyoti Construction & Co. Having their office at Behind Manish Park, Opp. Parsi Salcete Off. Veer Jijamata Marg, Pumphouse Andheri (E) Mumbai 400093

...... Opposite parties

BEFORE HON’BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER HON’BLE MR. VINAY KUMAR, MEMBER

For the Complainant : Ms. Sumedha Rao, Advocate

For the Opposite Parties : Ms. Rashmi B. Singh, Advocate Mr. Mohinder Kumar Madan, Advocate

PRONOUNCED ON: 9th April 2013

PER MR.VINAY KUMAR, MEMBER

This original petition was filed on 21.8.2000. On two occasions i.e. 24.5.2001 and 24.3.2011, it was dismissed for non-prosecution. On the later date, the counsel for the complainant also sought and was permitted discharge from the case. On 15.7.2011, it was restored and thereafter finally heard in October 2012, on day to day basis. In the meanwhile, on 1.10.2003 this Commission had decided to proceed against OP-2, ex parte. Advocates, Ms Rashmi B Singh for the complainant and Mr Mohinder Kumar Madan, for the OP-1, have been heard. THE CASE OF THE COMPLAINANT

2. The complainant, Twin Tower Co-operative Housing Society (hereinafter referred to as the Society) has filed this common complaint on behalf of all 145 owners of flats, in a representative capacity. The Society was registered of 24.3.1999. However, the flat owners have admittedly been in possession/occupation of their flats since 1989. As stated in the Complaint petition—

“The Complainant states that the respondents vide their agreement of sale to each flat purchaser promised various services. The complainant took possession of their flats in the year 1989. The complainant states that respondents have stated in the agreement of sale that they would be constructing and completing the building as per the sanctioned plans and that the respondents would comply with all the necessary formalities to get the Occupation certificate issued by B.M.C. The Complainant states that till today respondents have failed to obtain Occupation Certificate for the complainant’s building thereby providing deficient service. The Complainant states that due to non-obtaining of Occupation Certificate, the Complainant members are forced to pay one fourth more property taxes which amounts to Rs.22,98,906/- from 1.10.92 till 31.3.2000. The Complainant members also have to pay excess water taxes which are double of normal water taxes. Therefore, they are entitled to claim an amount of Rs.6,08,620/- from 1.10.1992 till 31.3.2000. The Complainant’s also have to pay non refundable water deposit which amounts to Rs.1,76,000/-. The Complainant have to pay non-agricultural charges to the Collector which amounts to Rs.50,390/- from 1.10.1992 to 31.3.2000.”

3. Therefore, the following relief is sought against the opposite parties—

“The Complainant therefore prays that:

(a) Be pleased to give conveyance of the property to the registered Co- operative Housing Society of the Complainant.

(b) A total sum of Rs.31,33,916/- towards excess property tax, water tax, non refundable deposit and non agricultural charges and further amount of excess taxes paid from the date of filing of complainant till payment;

(c) Be pleased to direct the respondents to pay complainant an amount of Rs.1,27,570/- towards registration of Co-operative Housing Society;

(d) Be pleased to direct the respondents to pay a total sum of Rs.1,65,007/- collected by way of advance tax; in individual agreement of sale.

(e) Be pleased to direct the respondents to pay a total sum of Rs.2,45,625/- towards estimated costs of compound wall and garages;

(f) Be pleased to order respondents to pay jointly and severally an interest at the rate of 18% p.a. on the total amount of Rs.34,26,493/- arrived at by adding prayer (b) (c) (d) from the date of filing complaint till payment;

(g) A sum of Rs.10,00,000/- be awarded towards the mental agony and inconvenience cause due to deficiency of service by the respondents;

(h) Costs be awarded

(i) Any other reliefs as this Hon’ble Commission deems fit and proper;”

RESPONSE OF THE OPPOSITE PARTY

4. Challenging the above position of the complainants, the response of OP-1/ Manish Vijay Enterprises raises some preliminary issues, in addition to responding to the main ones. We deem it appropriate to take up the preliminary issues, before going into the others—

a. The first objection is on the ground of limitation. It is alleged that the possession of the flats was given in 1989, while the complaint was filed eleven years later in 2000. Hence, the complaint is alleged to be barred by Section 24 A of the Consumer Protection Act, 1986. As replied in the rejoinder of the complainant, the occupation certificate is not issued and the conveyance of the property is not admittedly executed still. Therefore, the question of limitation does not arise. We agree with this position. If the cause of action arose in 1989 with the handing over of physical possession, it has continued to exist due to non-execution of the conveyance deeds in favour of the flat purchasers.

b. An issue is also raised about the locus standi of the Society to file the consumer complaint, alleging that there is no privity of contract with the OPs. On this point, the complaint itself clarifies that it is filed on behalf of individual flat owners as well as to represent their common issues. The affidavit accompanying the complaint is signed by individual flat owners as well as authorised representatives of the Society. It is also clarified in the rejoinder that the complaint is filed in the representative capacity, as per the provision in Section 2(1)(b)(iv) of the Act. We therefore, find no merit in the objection that the complainant Society has no locus.

c. It is further contended that the complaint is filed seeking the same relief which was sought in the earlier Writ Petition. In this context, the rejoinder of the complainant clarifies that the relief sought in the WP related to issue of occupation certificate from the Municipal Corporation. In the consumer complaint, the relief sought is the conveyance of the property by the OPs.

We therefore, reject the above preliminary objections and proceed to consider the substantive issues arising in this complaint.

EVIDENCE LED BY THE TWO SIDES

5. Exhibit A-1 is a copy of the agreement entered into by OP-1 in 1989 with individual complainants for purchase of flats. It gives a good idea of the factual background of the case. As per this agreement, the building plan was approved by Bombay Municipal Corporation on 23.1.1981(Clause 8). The agreement also authorised the builder (OP-1) to seek additional floor space from the Bombay Municipal Corporation, utilise and sell it (Clause 14). Possession of these flats was to be given only after the purchaser had made “all payments required to be made under this agreement” to the builders (Clause 17). Non-agricultural assessment for the previous three years was paid by the builder and was required to be paid by the purchasers from the date of grant of occupation certificate to the project (Clause 22). The individual purchasers of flat were not to be given any separate deed of conveyance or any other title. The same were required to be executed by the builders in favour of the Cooperative Society/Association (Clause 43).

6. Coming to the problem of a part of the project land being in occupation of slum dwellers, Clause 45 cast the following obligation on the builders:

“ The Builders hereby declare that at present there are many authorised as also unauthorised small structures on the said land and the same have been occupied by authorised and/or unauthorised persons. The Builders shall endeavour to get the portion or portions of the said land with such structures duly sub-divided from the land on which the Builders have been constructing the buildings. In case at any time of such sub-division is not approved by the Municipal Corporation of Greater Bombay the Builders shall have the said land or any part thereof conveyed in favour of a cooperative society, limited company or the association of apartment owners subject to such encroachments and tenancies.” 7. In the affidavit filed by Shri B. Dinkar on behalf of the Complainant society, it is further stated that as per Clause 16 of the agreement the builder was to notify the building as completed and hand over possession after receipt of entire amount of consideration. But, till the date of the complaint, the builder /OP had failed to get the occupation certificate issued for the building. The members of the Complainant Society have therefore, had to pay 1/4th higher property taxes and double of water tax. The affidavit further states that under Section 11 of the Maharashtra Ownership Flats Act, 1963, it is mandatory obligation of the builder to convey the property to the Complainant within four weeks of registration of Cooperative Housing Society.

8. Allegedly, the complainants have paid full agreed price as per the agreement of sale with individual purchasers of flats. The respondents have put them in physical possession but have not executed the conveyance deeds in their favour. In this behalf the affidavit of evidence, filed on behalf of the complainants, states that—

“ 3. I say that as per clause 16 of the Agreement of sale the respondent notified that they would be constructing and completing the building as per the sanctioned plans and that the respondents could comply with all the necessary formalities to get the Occupation Certificate issued by the Bombay Municipal Corporation. I say that clause 19 (a) of the Agreement of sale states that date of delivery would be the date on which the Occupation Certificate is granted by Bombay Municipal Corporation.”

4. I say that Writ Petition No.1827 of 2000 was filed with the High Court at Bombay against Bombay Municipal Corporation and Respondent No.1 for issuance of Occupation Certificate to the Complainant’s Building. I say that the said Writ Petition came to be disposed offin favour of the Complainant by Lordship Justice A.P. Shah and Lordship Justice S.A. Bobde vide their order dated 19.6.2001. I say that the said order directed the Bombay Municipal Corporation to issue Occupation Certificate within two months. I say that the order was not complied with therefore after issuing a legal notice dated 7.3.2002 a Contempt Petition No.2 of 2003 came to be filed in the Hon’ble High Court of Bombay wherein show cause notice has been issued against respondents and the matter is pending for final hearing. Annexed and marked at Exhibit ‘C8 is the copy of the order dated 19.6.2001. Annexed and marked Exhibit ‘D’ is the copy of the Contempt Petition No.2 of 2003.”

The complainants have also placed on record a copy of the order of the High Court of Bombay, passed on 19.6.2001 in W.P. No. 1827 of 2000. It reads—

“1. Heard parties. 2. Respondent nos.1 and 2 are directed to consider the petitioner’s request for grant of occupation certificate in the light of circular No.7188 dated 18th February, 2000 and pass suitable orders within a period of two months from today. Needless to say that the concerned authority shall grant personal hearing to the petitioner and its architect before passing final orders.

Petition is disposed of.”

Evidently, till the filing of the present complaint before this Commission, the High Court direction had not resulted in grant of the Occupation certificate by the Municipal Corporation of Greater Bombay (hereinafter referred to as MCGB). Nor had the conveyance in favour of the flat purchasers been executed by the OPs.

9. In the Written Response of OP-1, it is claimed that the occupation certificate has not issued from MCGB, though the building has been constructed as per the sanctioned plan. But, the same Written Response also admits that the problem arose as a slum, existing on a part of this land, was declared and notified as Slum Area in 1985. Due to this, slum dwellers could not be evicted and the plot size was effectively reduced. It is therefore, clear that the builder was fully aware of this effective reduction in the project area for about four years, when he handed over possession of individual flats in 1989 and undertook to obtain the Occupation Certificate from the BMC. The rejoinder affidavit of the complainant also points out that OP-1 did not take any steps to remove the encroachment on the property, thereby reducing the area to be conveyed to the complainants. This has an obvious reference to the period between 1981 since the building plan was sanctioned and 1985 when the slum was notified.

10. The case of the Complainant is that for want of occupation certificate, they have had to pay property tax and water charge at substantially higher rates. As per the rejoinder affidavit of the Complainant, during the period 1992 to 2004 Rs.43,28,876 lakhs was paid towards the property tax and Rs.12,29,291/- towards water tax. In this behalf, a refund of Rs.31,33,916/- has been sought by the Complainant. We have perused Exhibits B and C which are receipts filed by the complainant to substantiate this claim. With the affidavit of evidence, the complainant has filed a large number of these receipts of these charges paid to the BMC till 2003. The water charge receipts show the details of consumption, rate per unit and total bill amount. But, by themselves, these receipts do not show that this is levied at rates higher than normal. Per contra, the written response of OP-1 carries only a bland denial of the contention of the Complainants that due to non-obtaining of Occupation Certificate from the Municipal Corporation, the Members/Flat purchasers are forced to pay property tax and water tax at higher rate. No documents in support of the denial are filed by OP-1.

11. Significantly, in the course of the proceedings on 21.4.2005, the Commission gave the following direction: “The Opposite Party is directed to file affidavit clarifying the part of the bills which do not relate to the flats of the members of Complainant’s society. They shall also specify whether any of the bills in respect of property tax, water tax etc. has been paid by any person other than the members of the Complainant society. The Opposite Party shall further clarify as to why despite the order passed by the High Court the occupancy certificate has not been given and why they could not comply with the directions of the BMC.”

12. No such affidavit was filed, as observed by the Commission on 8.9.2005. However, subsequently on 23.1.2006 an affidavit was filed by Mr AjayPravichandra Kamdar for OP-1 responding to the directions of 21.4.2005. The affidavit accepts that the entire bills relate to the members of the complainant society and are paid by no one other than the members. More importantly, this affidavit does not question the claim of the complainant that they have to pay property charge and water charge at higher rates. It merely states that the flat purchasers had taken possession on their own risk, knowing that there was no occupation certificate.

13. Little later, on 27.1.2006, the Commission directed the Complainant to file complete records of the property tax and water charges paid by them and also produce a certificate from MCGB that 25% excess property tax was being levied as in this case Occupation Certificate has not been issued. In compliance, an affidavit was filed by the Complainant in April 2006. With this affidavit, a copy of the letter addressed by the counsel for the Complainant to the BMC on 30.1.2006 and the response dated 23.2.2006 received from the BMC have been enclosed, together with a copy of the circular No. HE/3625/IS dated 12.3.2001. The letter does not contain any specific response to the Complainant’s query, but does state in so many words that, “the percentage of property tax depends on the status of the property as to whether the subject property is connected with the supply of Municipal Water by W X M System.” Similarly, on the question of water charge, the Circular states that, “Arising out of revision of Water Charges and Sewerage & Waste Removal Rule, Standing Committee has sanctioned to levy either Water Charges & Sewerage Charges or Water Tax and Sewerage Tax where the property feeds by the water connection granted under Section 92 of M.M.C. Act. Similarly, the Water connections granted to land under construction, wherein extra water charges and extra sewerage charges are recovered in such cases, no Water Tax and Sewerage Tax to be levied to the property under reference. (Emphasis supplied) Thus, the benefits of deletion of Water Tax and Sewerage Tax from the property bills are also extended to the property which feeds by the connections granted under Section 92 of M.M.C. Act. The connection granted under Section 92 of M.M.Act as per Water Charges Rule No.6.0 now only pay water Charges/Sewerage Charges and not Water Tax and Sewerage Tax.” 14. It is clear from the above that the case before us would fall in the category of “land under construction” as admittedly, the occupancy certificate has not been issued yet. The water connection would consequently be with extra charge. Resultantly, the property tax too would be higher, as under section 140 of the Mumbai Municipal Corporation Act, 1888, property tax includes water tax, sewerage tax, General Tax and Education Cess. We therefore do not agree with OP-1 (in its unsubstantiated comment in the affidavit of Mr Ajay Pravinchandra Kamdar) that the compliance affidavit of the complainant is vague. In our view, the complainant could not have done more than enclosing copies of the response received from the BMC.

EVALUATION OF EVIDENCE

15. Conveyance of the property in favour of the complainant society is one of the prayers made in this complaint. But, conveyance itself is directly dependent on grant of occupation certificate by the GBMC. Detailed evidence considered in this order clearly brings out the fact that occupation certificate has not issued due to conscious violation of the FSI norm by OP-1. Thus, in an earlier affidavit filed by Mr. Ajay Pravinchandra Kamdar, partner of OP-1, detailed narration of the events as seen by OP-1, is given with a concluding claim that there was no deficiency of service on the part of OP-1. However, we find that the affidavit in itself carries the following admissions which would go to show additional construction was taken up by the builder/OP-1 with full knowledge that the slum notification of 1985 had already reduced the available FSI:-

a) The plan was originally sanctioned by the GBMC for seven floors but later the idea to build ten floors was persused by OP-1, under the impression that the civil aviation authority may not have any objection.

b) In March, 1984 an application was made to the GBMC seeking work commencement certificate for height of 75 feet. But, by then the building had already come up to a height of 87 feet !

c) Agreements for sale of flats on the 8th ,9th & 10th floors were entered into by OP- 1 with the prospective buyers “in the hope that NOCs from the Defence Department & Fire Fighting Department were just a formality which the Respondent No.1 were confident that they would get it as in the surrounding area, buildings with similar height were already constructed.” But, on 23.6.1988, GBMC issued notice to stop the construction works.

In the above background, we are unable to accept the claim of OP-1 that there was no deficiency of service. 16. We have earlier referred to the direction issued by this Commission on 21.4.2005. OP-1 was asked to file an affidavit clarifying the position on certain points. One of them was why, despite the orders passed by the High Court, occupancy certificate had not been given and why the OP could not comply with the direction of the BMC. On this point, the affidavit of OP-1 filed on 23.1.2006 states that as BMC did not issue the occupation certificate, the Complainant filed a contempt petition in which the High Court directed to work out the solution for issue of occupation certificate. The affidavit refers to a meeting of 17.1.2004 taken by Executive Engineer (Building Proposal), BMC in which flat purchasers and the OP were asked to share the cost of purchase of Transferable Development Rights (TDR). Apparently, no agreement was reached and therefore the Executive Engineer issued his directions in the letter of 17.1.2004. A copy of this letter brought on record by OP-1, shows that the decision of the Executive Engineer was that:

1) “The occupation of the Twin Towers C.H.S. Ltd. could be considered only if the requisite TDR is purchased and imbalance of FSI on the plot under reference is removed.

2) On compliance of various pending conditions as listed at Sr. Nos.1 to 14 in the letter under No.CE/9568/BSII/AK dated 12/1/2000 addressed to developers, architects and society members.”

In this background, we do not consider it appropriate to delve any further into the matter of non-issue of occupation certificate. Consequently, no relief can be awarded to the complainant on the prayer for execution of conveyance of property.

17. Coming to other components of relief sought by the complainant, we may state the obvious that they are direct consequence of non issue of conveyance of property by the vendor i.e. OP-1. In this behalf, builder/OP-1 cannot be permitted to shelter behind non- issue of occupation certificate by GBMC as, in our view, conscious violation of FSI norm by OP-1 was the cause for non-issue of occupation certificate. Evidence led by the two sides has been examined in detail. As already stated, the complainant has established with documentary evidence that property tax and water charge had to be paid at higher rates, as a direct consequence of non-issue of conveyance of property by the vendor/OP-1. The response of OP-1 has not travelled beyond a bland denial of well documented claim of the complainant society. It needs to be mentioned that the Commission even gave OP-1 a clear opportunity to bring evidence to the contrary, if any, by filing an affidavit.

18. The belated affidavit of OP-1, mentioned earlier in this order, admits that the bills brought on record by the other side pertained to the flats of the members of the complainant society. It also admits that payments towards water tax and property tax were made by the members themselves. However, on the main issue of responsibility of the builder for higher rates of property and water taxes, the affidavit makes a very devious and unconvincing attempt to escape liability by claiming that possession without occupation certificate was given on the insistence of the flat purchasers themselves. It says—

“They were ready to arrange themselves for the electricity and water connection. In this circumstances and not to dis-satisfy the flat purchasers, the Opposite Party agreed to give possession of the flats to the purchasers in the building “ABC” and most of the flat purchasers have given Undertaking to the Opposite Party that they were taking the possession without the Occupation Certificate and they will arrange for the water and electricity connection and if any additional charges are required to be paid, the same will be paid by them.”

19. We have perused a copy of the Undertaking mentioned above. It needs to be considered in the following background—

a. Admittedly the entire sale consideration had already been paid to the builder.

b. The builder/OP-1 was aware that his construction was in violation of FSI norm.

c. GBMC had already ordered stoppage of construction in 1989 and permission to redevelop the slum had been withdrawn in 1991 when individual undertakings were signed by flat purchasers.

d. As admitted in para 9(2) of the written Response of OP-1 filed on 6.11.2003, possession of the flats were delivered in 1989 and 1991-92. The undertakings of 1991 would be of no relevance to cases of possession in 1989.

Therefore, in our view OP-1 cannot be permitted to take shelter behind the undertakings signed by the flat purchasers.

20. In view of the details examined above, the complaint is partially allowed. OP- 1/M/s. Manish Vijay Enterprise are directed to refund an amount of Rs.30,61,410/- towards excess property tax, water tax etc. to the Complainant. This refund shall carry interest @ 9% with effect from the date of the complaint. OP-1 shall also pay an amount of Rs.one lakhs to the Complainant towards costs. The entire amount shall be paid within a period of three months failing this the period of delay shall carry interest at 12% per annum.

.……………Sd/-…………… (J. M. MALIK,J.) PRESIDING MEMBER

…………Sd/-………………. (VINAY KUMAR) MEMBER s./- NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI

(From order dated 17.04.2012 in First Appeal No. A/09/138 of the State Consumer Disputes Redressal Commission, Maharashtra, Mumbai)

Sou. Sindhu Kailash Gawade Age: 45 about 45 years, Occupation: Housewife, Residing at: At Post Rajgurunagar, Taluka : Khed, Mali mala, Wada road, Behind Tip Top Laundry District: Pune

…… Revision Petitioner/(original complainant) Versus

Gurudatta Construction c/o. Maruti Balu Thite, aged: about 47 years, occupation: builder, At post Warude, Taluka: Khed, District : Pune 410505

…... Respondent/original opponent)

BEFORE:

For the Petitioner : Mr. Rahul Gandhi, Advocate

Pronounced on: 22 nd April, 2013

Petitioner/complainant has field the present revision petition under Section 21(b) of the Consumer Protection Act, 1986(for short, ‘Act’) challenging order dated 17.4.2012, passed by the State Consumer Disputes Redressal Commission, Mumbai (for short, ’State Commission’).

2. Brief facts that petitioner/complainant gave contract for construction of her house to respondent/o.p, vide agreement dated 25.11.2002. It is alleged that while constructing the house, respondent used material of inferior quality and no proper water roofing was done. Petitioner complained to the respondent and also sent him a notice. Due to deficiency on the part of the respondent, petitioner filed a consumer complaint before District Consumer Disputes Redressal Forum, Pune (for short, ‘District Forum’).

3. Respondent in its reply took the plea that he started construction of the house of the petitioner as per her opinion. It is further stated that he agreed to do the additional work apart from the agreement for which petitioner assured to give consideration for additional work. Respondent made the construction as per R.C.C. design. Petitioner has made vague allegations against him and has not filed any certificate of expert person for showing the lacuna in the construction

4. District Forum, vide order dated 14.12.2008, partly allowed the complaint and passed the following order;

1). “The respondent shall pay amount of Rs.2,00,000/- to the applicant, for causing deficiency in construction of the house of the applicant, within eight weeks from the date of receiving this judgment. If the said amount is not paid within the above period, then the respondent shall pay interest at the rate of 6% per annum to the applicant till the realization of entire amount.

2). The other demands of the applicant are dismissed”.

5. Being aggrieved by the order of District Forum, respondent filed an appeal for dismissal of the complaint, whereas, petitioner filed an appeal for enhancement.

6. Vide impugned order, State Commission dismissed the appeal of the petitioner and allowed the appeal of the respondent. In the result, complaint filed by the petitioner before the District Forum was dismissed.

8. We have heard the learned counsel for the petitioner and gone through the record.

9. Learned counsel for petitioner has assailed the impugned order on the ground that District Forum had appointed a Court Commissioner who visited the premises. However, respondent did not raise any objection to the appointment of the Court Commissioner. Thus, deficiency in the construction has been fully established by the petitioner.

10. On the point of limitation, it has been contended by the counsel that when it came to the notice of the petitioner regarding short-fall of the construction, he gave a notice and as such limitation in filing the complaint shall start run from the date of service of the notice. Moreover, respondent never raised any objection with regard to the limitation. Learned counsel has relied upon the following judgments in support of its case; (i) Ram Sarup Gupta(dead) by L.R.s v. Bishnu Narain Inter College and others, AIR 1987, Supreme Court, 1242(1) ;

(ii) Lucknow Development Authority v. M. K. Gupta, AIR, 1994, Supreme Court, 787;

(iii) Ramaniyam Real Estates Ltd. v. Triveni Apartments Owner Welfare Association, AIR 1999 Madras, 24; (iv) Narain Prasad Aggarwal (D) by LRs. vs. State of M. P, AIR 2007, Supreme Court, 2349;

(v) Kandimalla Raghavaiah & Co.v. National Insurance Co. & Anr, 2009 (7) SCC 768 and (vi) Trans Mediterranean Airways v. Universal Exports & Anr, 2011 (10) JT 624.

11. It is an admitted case, that agreement for construction of the house was executed on 25.11.2002 between the parties and final payment was made, vide receipt dated 19.8.2003. As per averments made in the complaint, cause of action for filing of the present case arose on 20.09.2005 when notice dated 17.8.2005 was issued to the respondent to do the incomplete work. So, on the face of it, the consumer complaint, which has been filed before the District Forum on 23.12.2005, is beyond the period of limitation. Admittedly, no application for condonation of delay had been filed. 12. It is well settled principle of law that any relief can be claimed under the Act, within two years from the date on which the cause of action accrues. 13. Section 24-A of the Act, deals with this situation which is reproduced as under; “ 24-A. Limitation period :- (1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen. (2) Notwithstanding anything contained in sub- section (1) a complaint may be entertained after the period specified in sub- section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period. Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay”. 14. The above provision is clearly peremptory in nature requiring the Consumer Fora to see at the time of entertaining the complaint, whether it has been filed within the stipulated period of two years from the date of cause of action. 15. Hon’ble Apex Court in case of Kandimalla Raghavaiah & Co. versus National Insurance Co. Ltd. and another, 2009 CTJ 951 (Supreme Court) (CP) took view of the observations made in case State Bank of India v. B.S. Agricultural Industries, 2009 CTJ 481 (SC) (CP) = JT 2009 (4) SC 191, as under:- “12. Recently, in State Bank of India Vs. B.S. Agricultural Industries, 2009 CTJ 481 (SC) (CP) = JT 2009 (4) SC 191, this Court, while dealing with the same provision, has held:

“ 8. It would be seen from the aforesaid provision that it is peremptory in nature and requires consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The consumer forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, ‘shall not admit a complaint’ occurring in Section 24A is sort of a legislative command to the consumer forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the consumer forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside”.

In para No.13, it has been held by the Hon’ble Supreme Court

“ The term “cause of action” is neither defined in the Act nor in the Code of Civil Procedure, 1908 but is of wide import. It has different meanings in different context, that is when used in the context of territorial jurisdiction or limitation or the accrual of right to sue. Generally, it is described as “bundle of facts”., which if proved or admitted entitle the plaintiff to the relief prayed for. Pithily stated, “cause of action” means the cause of action for which the suit is brought. “Cause of action” is cause of action which gives occasion for and forms the foundation of the suit. In the context of limitation with reference to a fire insurance policy, undoubtedly, the date of accrual of cause of action has to be the date on which the fire breaks out”.

16. On the point of recurring cause of action reference may be made to the observation made by the Hon’ble Supreme Court in Raja Ram Maize Products etc. Vs. Industrial Court of M.P. and Other, AIR 2001 SUPREME COURT 1676, wherein it has been held ; “10. The concept of recurring cause of action arising in a matter of this nature is difficult to comprehend. In Balakrishna Savalram Pujari Waghmare v. Shree Dhyaneshwar Maharaj Sansthan, AIR 1959 S.C. 798 it was noticed that a cause of action which is complete cannot be recurring cause of action as in the present case. When the workers demanded that they should be allowed to resume work and they were not allowed to resume work, the cause of action was complete. In such a case the workers going on demanding each day to resume work would not arise at all. The question of demanding to allow to do work even on refusal does not stand to reason.” 17. The observations made by the Hon’ble Apex Court in the authoritative pronouncements discussed above, are fully attracted to the facts and circumstances of the present case.

18. In the case in hand, no application under Section 24A of the Act, was filed before the District Forum. 19. None of the judgments cited above are applicable to the fact of the present case. Even case of Kandimalla Raghavaiah & Co. (supra) does not help the petitioner rather it goes against him. 20. Looking from any angle, we find that the complaint filed by the petitioner before the District Forum was barred by limitation. Thus, State Commission while dismissing the complaint, has not committed any error. Moreover, there is no infirmity or illegality in the impugned order. 21. The present revision petition having no legal merits is hereby dismissed with costs of Rs.10,000/- (Rupees Ten Thousand only). 22. Petitioner is directed to deposit the cost by way of demand draft in the name of “Consumer Welfare Fund’ as per Rule 10A of Consumer Protection Rules, 1987,within four weeks from today. In case, petitioner, fails to deposit the cost within prescribed period, then she shall be liable to pay interest @ 9% p.a. till its realization. 23. List on 24th May, 2013, for compliance. ……..……………………J (V.B. GUPTA) ( PRESIDING MEMBER)

………………………… (REKHA GUPTA) MEMBER SSB/ NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 4255 OF 2010 (Against the order dated 30.07.2010 in Appeal No.242/2008 of the State Commission, A.P.)

1. Surya Estates Construction Firm, Represented by K.Surya Prakash H.No.12-7- 233, Mettuguda, Secunderabad, Andhra Pradesh 2. K.Surya Prakash S/o Kishanlal Managing Director, M/s Surya Estate Age : Years, Occ.: Business H.No.12-7-233, Mettuguda, Secunderabad, Andhra Pradesh ...... Petitioners

Versus 1. Venkateshwara Sarma S/o Punnaiah Sastry Age : 67 years, Occ. : Retd. Employee, R/o Flat No.G-1, Plot No.11-2-127, Surya Residency Mylargadda, Secunderabad Andhra Pradesh

2. Smt. Praveena D/o Y. Ramaswamy Age : 37 years, Occ. : Employee, R/o Flat No.G-2, Plot No.11-2-127, Surya Residency Mylargadda, Secunderabad Andhra Pradesh 3. Smt. Jaitunnisa W/o Mirza Yousuf Baig Age : 57 years, Occ. : House Wife R/o Flat No.101 Plot No.11-2-127, Surya Residency Mylargadda, Secunderabad Andhra Pradesh 4. Ch. V.Shivasankaram S/o Ch. V.Sastry Age : 37 years, Occ. : Employee, R/o Flat No.102 Plot No.11-2-127, Surya Residency Mylargadda, Secunderabad, Andhra Pradesh 5. G.S.S.A. Rama Rao S/o G.S.R. Murthy Age : 52 years, Occ. : Employee, R/o Flat No.201 Plot No.11-2-127, Surya Residency Mylargadda, Secunderabad, Andhra Pradesh 6. Smt. Suman Pillai W/o NRK Pillai Age : 29 years, R/o Flat No.202 Plot No.11-2- 127, Surya Residency Mylargadda, Secunderabad, Andhra Pradesh …... Respondents

BEFORE:

HON'BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER

HON'BLE MRS. REKHA GUPTA, MEMBER

For the Petitioner : Mr. Kailash Pandey, Advocate with Mr. Ranjeet Singh, Advocate

For the Respondent : Mr. Y.V.S.S. Sharma, Advocate with

Mr. P.Prabhakar, Advocate for R-1 to 6

Pronounced on : 22 nd April, 2013

PER MR. JUSTICE V.B.GUPTA , PRESIDING MEMBER

Being aggrieved by order dated 30.7.2010, passed by Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad (short, “State Commission”) petitioners/opposite parties have filed present revision petition.

2. Brief facts as per complaint are that respondents/complainants are owners of respective flats in Surya Residency Apartment, Mylargadda, Secunderabad. The said apartments were constructed by petitioner no.1/opposite party no.1, represented by petitioner no.2/opposite party no.2, its Managing Director. Petitioner no.2 entered into agreements for sale of flats with respondents in July, 2002. Flats were handed over, vide registered sale deeds in the year 2003, with some unfinished works and promised to complete the unfinished works within one or two months. Respondents made personal visits to the office of the petitioners and requested them to complete the works which were left unfinished. However, there was no response from the petitioners. It is stated that following are the unfinished works and defects which were not rectified by the petitioners :-

1. Flooring of stilt area (Parking area) at ground floor is not properly done which is left unfinished, the cellar floor unfinished without plastering.

2. Electrical works i.e. earthing is not properly done.

3. Electrical wiring on ground floor and also other floors are not properly done.

4. Electrical meter/meter boards are fixed to old boards which are not replaced with new ones.

5. Watchman room and his accommodation is not provided.

6. Manholes are not properly covered with iron safes. 7. Leakages from ceiling at IInd floor and other floors are not rectified which causes dampness to the rooms.

8. Safety guards or safety measures are not taken to cover electric meters.

9. Ladder is not provided for the overhead tank.

10. Roof over the staircase to stop the flowing of rain water is not provided.

11. Name Boards of flat owners and the name boards of the Apartment is not provided.

12. Parking areas are not marked and parking space was not provided to the flat owners who purchased car parking though the amount of car parking was collected by the builder/opposite party no.2 from the flat owners.

13. Existing borewell work i.e. to dig more depth in getting ground water which was left to the fate of the complainants and the same was not done by the opposite parties in spite of several repeated requests, neither the new bore well is provided nor the old motors are replaced with new motors.

3. It is further alleged that Petitioner no.2 did not take any permission from Water Works Sewerage Department for regularizing the water connection to the said flats. Due to the threat of immediate disconnection of water supply from the Water Works Department, respondents were forced to pay Rs.1,70,000/- for regularizing the water connection. It is also alleged that though possession of flats was delivered to the respondents in the year 2003, petitioners executed a separate document for re- allotment of car parking space to the fifth respondent on 28.3.2005, leaving rest of the work unfinished from that date onwards. Respondents also got issued a legal notice dated 23.11.2005. Alleging deficiency in service, respondents approached District Consumer Disputes Redressal Forum-I, Hyderabad (For short, “District Forum”) to direct the petitioners for following works to be done :

a. To direct the petitioners rectify the defects in the construction of flats owned by the respondents and order to complete the unfinished works within a stipulated time.

b. To direct the petitioner no.2 to pay compensation of Rs.1 lakh for mental agony, damages and hardship suffered by the complainants.

c. To award costs in favour of the respondents. d. To direct the petitioner no.2 duly take steps for regularization of water connection for the flats owned by the respondents with Water Works Department”.

4. Petitioners filed their counter denying most of the allegations made in the complaint. They have stated that as per agreement, respondents have to pay the amounts for providing electrical meters. Since, respondents have not paid the amount, petitioners with their own amount provided electrical meters. It is stated that there is no agreement to provide safeguards to cover the electrical boards. Petitioners have also alleged that they have allotted the parking areas to those who had purchased and paid the amount. It also states that at the time of handing over the possession, there was sufficient water in the bore well and availability of groundwater depends upon rains and many other factors which are not in their control. The complaint filed by the respondents is barred by limitation, as respondents entered into agreement with the petitioners in the year 2002 and sale deeds were executed in February, 2003. Thus, limitation for filing the complaint ends by February, 2005. There is no deficiency in service on their behalf and complaint merits dismissal with exemplary costs.

5. District Forum, vide order dated 3.1.2008, dismissed the complaint.

6. Being aggrieved, respondents filed appeal. The State Commission partly allowed the same, vide its impugned order.

8. We have heard the learned counsel for the parties and gone through the record.

9. Short question which arise for consideration is as to whether complaint filed before the District Forum was within the period of limitation or not. As apparent from record, the complaint was filed in the year 2006. Plea with regard to the cause of action as averred in the complaint is reproduced as under ;

“ Cause of action arose when the opposite party No.2 entered into an Agreement for the development of the Apartment of sale of flats with the complainants on July, 2002 and other subsequent dates and the opposite party No.2 executed Sale Deeds in favour of the complainants in the year 2003 and when the opposite party no.2 entered into an Agreement with the complainants No.5 on 28.3.2005, and when the complainants got issued a legal notice to opposite party No.1 & 2, and on 7.12.2005, the opposite party no.2 issued a reply notice, the cause of action arose at Hyderabad.”

11. District Forum in this regard in its order observed ;

“ According to the complainants the opp. Party no.2 entered into an agreement for sale of flat with the complainants in the month of July, 2002 and handed over the flats possession to the complainants under registered sale deed in the year 2003. When admittedly, the complainants agreed that they have taken the possession of flats in 2003 what stopped them not to file the complaint here before the Forum immediately. The cause of action start from the date of the possession and the limitation is two years from the date of taking of the possession. Complainants filed this complaint in the year 2006. Without filing sec. 24-A petition for the condonation of the delay. ”

It further held ;

“In this case also complainants have not filed Sec.24-A, petition Consumer Protection Act for the condonation of delay. If the complainants filed Section 24-A petition then this Forum may condone the delay and may be given an order on sympathetical grounds. But the complainants have not taken any steps for filing of Sec.24-A petition. When there are any defects in the construction of the flats it is the mandatory duty on the part of the complainants to raise the same within two years from the date of taking of possession of the flats. What happened to the complaints in not raising any disputes regarding the construction work within two years after taking the possession of the flats is not known. Ex.A12 which is the allotment for car parking space is favour of complainant no.5, if the car parking space is not allotted to the complainant no.5 then he has every right to file complaint regarding car parking space construction. The flat is different from the car parking space. So, the averments of the complaint in paragraph no.7 regarding the defects of the flats are not allowed up to point no.11

After perusing the Advocate Commissioner’s report the learned advocate Commissioner clearly stated that there is no markings for car parking on the stilt area. But the complainants have not prayed about the car parking space in the prayer.”

12. It is well settled principle of law that any relief can be claimed under the Consumer Protection Act, 1986 (for short as ‘Act’), within two years from the date on which the cause of action accrues. 13. Section 24-A of the Act deals with this situation which is reproduced as under ; “ 24-A. Limitation period :- (1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen. (2) Notwithstanding anything contained in sub-section (1) a complaint may be entertained after the period specified in sub- section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period. Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.”

14. The above provision is clearly peremptory in nature requiring the Consumer Fora to see at the time of entertaining the complaint, whether it has been filed within the stipulated period of two years from the date of cause of action. 15. Hon’ble Apex Court in case of Kandimalla Raghavaiah & Co. versus National Insurance Co. Ltd. and another, 2009 CTJ 951 (Supreme Court) (CP) took view of the observations made in case State Bank of India v. B.S. Agricultural Industries, 2009 CTJ 481 (SC) (CP) = JT 2009 (4) SC 191, as under:-

“12. Recently, in State Bank of India Vs. B.S. Agricultural Industries, 2009 CTJ 481 (SC) (CP) = JT 2009 (4) SC 191, this Court, while dealing with the same provision, has held:

“ 8. It would be seen from the aforesaid provision that it is peremptory in nature and requires consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The consumer forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, ‘shall not admit a complaint’ occurring in Section 24A is sort of a legislative command to the consumer forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the consumer forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside.”

In para No.13, it has been held by the Hon’ble Supreme Court ;

“The term “cause of action” is neither defined in the Act nor in the Code of Civil Procedure, 1908 but is of wide import. It has different meanings in differentcontexts, that is when used in the context of territorial jurisdiction or limitation or the accrual of right to sue. Generally, it is described as “bundle of facts”.,which if proved or admitted entitle the plaintiff to the relief prayed for. Pithily stated, “cause of action” means the cause of action for which the suit is brought. “Cause of action” is cause of action which gives occasion for and forms the foundation of the suit. In the context of limitation with reference to a fire insurance policy, undoubtedly, the date of accrual of cause of action has to be the date on which the fire breaks out.”

16. The Apex Court in State Bank of India v. B.S. Agricultural Industries, II (2009) CPJ 29 (SC) SLT 793 = (2009) 5 SSC 121, held as under ;

“12. As a matter of law, the Consumer Forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the Consumer Forum to take notice of Section 24-A and give effect to it. If the complaint is barred by time and yet the Consumer Forum decided the complaint on merits, the Forum would be committing an illegality and therefore, the aggrieved party would be entitled to have such order set aside.”

17. On the point of recurring cause of action reference may be made to the observation made by the Hon’ble Supreme Court in Raja Ram Maize Products etc. Vs. Industrial Court of M.P. and Other, AIR 2001 SUPREME COURT 1676, wherein it has been held ;

“10. The concept of recurring cause of action arising in a matter of this nature is difficult to comprehend. In Balakrishna Savalram Pujari Waghmare v. Shree Dhyaneshwar Maharaj Sansthan, AIR 1959 S.C. 798 it was noticed that a cause of action which is complete cannot be recurring cause of action as in the present case. When the workers demanded that they should be allowed to resume work and they were not allowed to resume work, the cause of action was complete. In such a case the workers going on demanding each day to resume work would not arise at all. The question of demanding to allow to do work even on refusal does not stand to reason.”

18. It is well settled that by serving the legal notice or by making representation, the period of limitation cannot be extended by the petitioner. In this context, reference can be made toKandimalla Raghavaiah & Co. (supra), in which it has been held; “ By no stretch of imagination, it can be said that Insurance Company’s reply dated 21st March, 1996 to the legal notice dated 4th January, 1996, declining to issue the forms for preferring a claim after a lapse of more than four years of the date of fire, resulted in extending the period of limitation for the purpose of Section 24A of the Act. We have no hesitation in holding that the complaint filed on 24th October, 1997 and that too without an application forcondonation of delay was manifestly barred by limitation and the Commission was justified in dismissing it on that short ground.”

19. Thus, on the face of it complaint filed before the District Forum was barred by limitation and no application for condonation of delay had been filed on behalf of the respondents. Under these circumstances, State Commission has committed grave irregularity in setting aside the well-reasoned order passed by the District Forum. Accordingly, we allow the present revision petition and set aside the order passed by the State Commission and restore the order of the District Forum. Consequently, the complaint of the respondents filed before the District Forum stand dismissed.

20. Parties shall bear their own cost.

……………..……..………J

(V.B. GUPTA)

(PRESIDING MEMBER)

…………………….……….

(REKHA GUPTA)

(MEMBER)

REVISION PETITION NO. 2380 OF 2011 With (I. A. No. 01 of 2011 for Stay)

(From order dated 19.04.2011 in First Appeal No. 557 of 2011 of the M. P. State Consumer Disputes Redressal Commission, Bhopal)

M.P. Housing Board, through the Estate Officer, Deen Dayal Nagar, Gwalior (M.P.)

…. Petitioner

Versus

Madhav Nagar Vikas Samiti, through O.P.Goyal, son of Sh. Phool Chand Goyal, R/o: L- 37, Madhav Nagar, Gwalior (M.P.) …… Respondent

BEFORE:

For the Petitioner : Mr. R. S. Banthia, Advocate

Pronounced on: 23 rd April, 2013

Being aggrieved by order dated 19.04.2011, passed by M.P. Sate Consumer Disputes Redressal Commission, Bhopal (for short, ‘State Commission’), petitioner/o.p has filed the present revision petition.

2. Respondent/complainant filed a complaint under Section 12 of the Consumer Protection Act, 1986 (for short, ‘Act’) against petitioner for quashing of demand for general expenses for the period from 1.4.2002 to 31.3.2008 levied by the petitioner, vide notification No. 8/02 dated 15.2.2002, being against the law and also prayed for compensation of Rs.10,000/- for mental agony and cost of Rs.3,000/-. 3. Complaint was contested by the petitioner. 4. District Consumer Disputes Redressal Forum, Gwalior (for short, ‘District Forum’) vide order dated 29.11.2010, accepted the complaint. 5. Aggrieved by the order of District Forum, petitioner filed an appeal before the State Commission. Alongwith the appeal, application under Section 15 of the Act seeking condonation of delay of 85 days was also filed. 6. State Commission vide its impugned order, dismissed the appeal on the ground of limitation. 7. Hence, this revision. 8. We have heard the learned counsel for the petitioner and gone through the record. 9. Main ground on which condonation of delay before the State Commission was sought reads as under; “ That the certified copy of the said appeal was procured on 30.11.2010 which was sent by the local advocate to the divisional office on 14.12.2010. The head office of the Housing Board is situated at Bhopal and because of that reason the Gwalior office sent the file to the head office at Bhopal in the first week of January. The post of Chief Legal Advisor at Bhopal had become vacant and in his place the new Legal Advisor who is a retired District and Sessions Judge joined office in the first week of March after which only a decision for filing the said appeal was taken and the appeal filed after appointing the advocate. There has been a delay of 85 days in filing the same”. 10. State Commission, while dismissing the appeal observed ; “ This appeal is bared by 85 days for which the reason assigned is that after the judgment dated 29.11.2010 the copy thereof was made available on 30.11.2010 which was forwarded to the Board’s office on 14.12.2010. It is stated that since the head office of the housing board is situated at Bhopal, it is necessary as per system of the Board to first obtain permission for filing appeal against the order passed against the board. The matter could not be processed further as the post of Chief Legal Advisor was lying vacant and it was only when a retired District & Sessions Judge was appointed as Chief Legal Advisor that the sanction was granted and the appeal was filed in which delay of 85 days occurred. We find that right from the beginning, the copy of the order was made available to the housing board on the next day, the housing board was lethargic and sent copy to the head office on 14.12.2010. Specific dates have not been given about the post of Legal Officer lying vacant. No details were given as to who was officiating in his post. We find that the delay has not been satisfactorily explained and dismiss the appeal on the ground of limitation”.

11. Before this Commission petitioner has filed additional affidavit of Its Estate Officer stating that;

“the post of Chief Legal Advisor remained vacant from 1.1.2011 to 14.2.2011 when only additional charge was entrusted to Chief Vigilance Officer of the Petitioners’ Board though no decisions were taken with respect of filing of the appeals before the M. P. State Consumer Disputes Redressal Commission wherein the subject matter of the case required consideration at the level of the Chief Legal Advisor who is a retired District Judge”.

12. In the entire affidavit, it has nowhere been stated that during the above period no petition/appeal was filed by Petitioner’s Board before any other judicial fora. Affidavit is absolutely silent on this aspect.

13. Under the Act, a special period of limitation has been provided to ensure expeditious disposal of cases. Complaint has to be disposed of within 90 days from the date of filing where no expert evidence is required to be taken and within 150 days where expert evidence is required to be taken. The inordinate delay of 85 days has not been sufficiently explained before the State Commission.

14. Hon'ble Supreme Court in Anshul Aggarwal vs. New Okhla Industrial Development Authority–IV (2011) CPJ 63 (SC) has held that while deciding the application filed for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Act for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if the appeals and revisions which are highly belated are entertained. Relevant observations made by Apex Court read as under:

“ It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this court was to entertain highly belated petitions filed against the orders of the consumer fora”.

15. Accordingly, we hold that State Commission rightly rejected petitioner’s application for condonation of delay. We do not find any infirmity or illegality in the impugned order. Present revision petition having no legal merits is hereby dismissed with cost of Rs. 5,000/-(Rupees Five Thousand Only) 16. Petitioner is directed to deposit the cost by way of demand draft in the name of “Consumer Welfare Fund’ as per Rule 10A of Consumer Protection Rules,1987, within four weeks from today. In case, petitioner fails to deposit the cost within prescribed period, then it shall be liable to pay interest @ 9% p.a. till its realization. 17. List on 24th May, 2013, for compliance. ……..……………………J

(V.B. GUPTA)

( PRESIDING MEMBER)

…………………………

(REKHA GUPTA)

MEMBER

SSB/ NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

(From the order dated 20.12.2012 in First Appeal No. 1222/2008

of the Punjab State Consumer Disputes Redressal Commission, Chandigarh)

INTERIM APPLICATION NO. 613/2013

(STAY)

Janta Land Promoters Limited, Head Office: SCO 522-23-24, Sector 70, Mohali, Through its General Manager, Now at SCO – 39-42, Sector 80, Mohali, Punjab

... Petitioner

Versus

Navneet Modi, Son of Late Shri S.L. Modi, Resident of House No. 346, Sector 15A, Chandigarh

…. Respondent(s)

BEFORE

PRESIDING MEMBER

Appeared on 14.03.2013 at the time of arguments,

For the Petitioner(s) Mr. S.K. Gupta, Advocate

For the Respondent (s) Mr. Gaurav Chopra, Advocate

Mr. Himanshu Gupta, Advocate

PRONOUNCED ON : 23 rd APRIL, 2013

O R D E R

PER DR. B.C. GUPTA, MEMBER

This revision petition has been filed under Section 21(b) of the Consumer Protection Act, 1986 against the order dated 20.12.2012 passed by the Punjab State Consumer Disputes Redressal Commission(hereinafter referred to as “State Commission”)in First Appeal No. 1222 of 2008, vide which the State Commission had confirmed order dated 03.09.2008 passed by the District Consumer Disputes Redressal Forum, Ropar in complaint No. 110 dated 23.5.2008, directing the present petitioner not to charge interest of Rs. 2,38,640/- as per their letter dated 05.05.2008. 2. Briefly stated, the facts of case are that complainant / respondent Navneet Modi filed an application for allotment of residential plot of 200 Sq.Yards in Janta Residential Township, Sector 91, Mohali in a scheme floated by the petitioner/opposite party. He deposited a sum of Rs. 7.20 lacs (30%) vide Demand Draft No. 490648 dated 01.09.2005 and a booking receipt No.2020 dated 01.09.2005 was issued to him. The total price of the said plot was stated to be Rs. 24.00 lacs @ Rs.12,000/- per Sq. Yard. The petitioner/opposite party issued a letter dated 08.03.2006 to the complainant / respondent informing him about the allotment of a plot in his favour and asked him to deposit a further sum of Rs. 7.20 lacs (30%). The respondent deposited the said amount also vide cheque No. 6842004 dated 18.10.2006 drawn on the Oriental Bank of Commerce and this payment was acknowledged vide receipt No. 2967 by the petitioner. In this way a total sum of Rs. 14.40 lacs was deposited by the respondent against the price of the plot, leaving a balance of Rs. 9.60 lacs. The petitioner / opposite party then issued a formal letter of allotment dated 30.10.2006, by which the allottee was told that the petitioner company had decided to allot him residential plot No. 1023 of 200 Sq. Yard in the scheme mentioned above at a tentative price of Rs. 24.00 lacs. He was asked vide this letter to remit the balance amount of Rs. 9.60 lacs in lump sum without interest, within 45 days from the date of issue of the letter to enjoy a rebate of 5% on the balance amount. In the alternative, he was asked to deposit the balance amount in two instalments of Rs. 4.80 lacs each payable on 30.04.2007 and 30.10.2007 respectively along with interest of 12% per annum on the outstanding amount. As per the calculations mentioned in the letter dated 30.10.2006, the respondent was asked to deposit Rs. 5,37,600/- by 30.04.2007 and another Rs. 5,08,800/- by 30.10.2007. However, the respondent did not make any further payment to the petitioner and took the stand that basic amenities had not been provided for the plot in question. According to the complainant, he personally met the General Manager of the petitioner company on 18.10.2006 and complained about the lack of basic amenities and development activities. The petitioner vide letter dated 08.03.2007, informed the respondent/complainant that the company had decided to hand over physical possession of residential plot No. 1023 to him and he could take over the possession on 14.03.2007 or 15.03.2007 between 11.00 A.M. to 1.00 P.M. The respondent, however, sent a letter dated 15.03.2007 to the company complaining about development works but he was informed vide letter dated 03.5.2007 from the company that the developments works had been completed and he could take over the possession within seven days of the issue of the letter from 10.00 A.M. to 12.00 noon. He was sent another letter dated 28.06.2007 by the company that the first instalment of the balance payment of Rs. 5,37,000/- had become due on 30.04.2007 as mentioned above and he was asked to deposit the sum within seven days of the letter, in order to avoid penalty and penal interest. The respondent, however, did not take possession and kept on corresponding with the company regarding lack of development works. The petitioner then issued a letter dated 17.04.2008 to the complainant / respondent saying that the allotment of the plot shall be cancelled if the balance payment was not deposited within ten days. The complainant, thereafter, deposited the principal amount of Rs. 9.60 lacs under protest on 28.04.2008 vide cheque No. 495924 dated 28.04.2008 drawn on the Oriental Bank of Commerce. The petitioner however, demanded a sum of Rs. 11,98,640/- as overdue till 29.04.2008 and asked him to remit a further amount of Rs. 2,38,640/- (Rs. 11,98,640/- minus Rs. 9.60,000/-as per intimation already sent to him vide allotment letter dated 30.10.2006). 3. The case of the petitioner is that the complainant had accepted the terms and conditions contained in the letter of allotment dated 30.10.2006, and hence there is a legally binding contract between the parties. The complainant / respondent was asked to have possession of the plot three times, but he never submitted the building plans for approval of the competent authority. The complainant was required to complete the building within three years from the date of issue of possession letter, after getting the plan of the proposed building approved from the competent authority. Further the amount of Rs. 7.20 lacs, which the complainant paid on 18.10.2006 should have been paid within thirty days of the issue of letter of allocation dated 08.3.2006. The complaint of the respondent that the possession of the plot was denied on 18.10.2006 is meaningless because the respondent was informed first time to take possession on 14th and 15th March, 2007, vide letter dated 03.05.2007 only but he did not turn up. The respondent had deposited principal amount of Rs.24.00 lacs but had failed to deposit six monthly interest as well as interest on the late payments as per the contract. 4. The respondent made a claim before the District Forum, Ropar pleading that the opposite party should be directed not to charge the penal interest / overdue amount as per letter dated 05.5.2008 for Rs. 2,38,640/-. The opposite party be further directed to give Rs. 1,00,000/- as compensation for harassment and Rs. 10,000/- for cost of litigation. The District Forum, vide their order dated 03.09.2008, allowed the complaint with the direction to the petitioner/opposite party not to charge penal interest / overdue charges as reflected in their letter dated 05.05.2008, amounting to Rs. 2,38,640/- from the complainant, because penal interest/overdue charges could only be charged after delivery of the possession of the plot in question, with the completion of basic amenities. The State Commission also dismissed the appeal against this order agreeing with the contention of the District Forum. 5. At the time of hearing before us, the learned counsel for the petitioner has drawn our attention to the grounds of the revision petition, in which it has been stated that the respondent booked a residential plot of the value of Rs. 24.00 lacs on 01.09.2005 by making an initial payment of Rs. 7,20,000/-. In the draw of lots held on 02.09.2006, a residential plot bearing No. 1023 was earmarked for him and this fact was conveyed to him vide letter dated 02.09.2006. On depositing another sum of Rs. 7,20,000/-, an allotment letter dated 30.10.2006 was issued to the respondent, asking him to pay the balance amount of Rs. 9,60,000/- in lump sum without interest, within a period of 45 days and avail a rebate of 5% on lump sum payment, or in the alternative, to remit the balance amount in two six monthly instalments of Rs. 4,80,000/- each with interest of 12% per annum. The schedule mentioned in the said letter was as follows: Sl. Due Date Amt. of Instalment Interest Total Amount No. 1. 30.04.2007 4,80,000/- 57,600/- 5,37,600/- 2. 30.10.2007 4,80,000/- 28,800/- 5,08,800/- Total 9m60,000/- 86,400/- 10,46,400/-

6. The respondent did not make the lump sum payment and also, he did not pay the interest on two instalments, which were due on 30.04.2007 and 30.10.2007. He deposited the balance amount of Rs. 9,60,000/- on 28.04.2008 only. The petitioner was therefore, within his rights to claim interest from the respondent as per the terms and conditions of the allotment. As on 28.04.2008, an amount of Rs. 11,98,640/- was due and hence the petitioner demanded a sum of Rs. 2,38,640/- (Rs. 11,98,640/- minus Rs. 09,60,000/-) from the respondent. Before that, the petitioner had requested the respondent to take possession of the plot vide letters dated 08.03.2007, 03.05.2007 etc. Another letter had been sent to the respondent dated 17.04.2008 by which he was informed that if the outstanding amount was not paid, the allotment shall stand cancelled. The deposit of the amount of Rs. 09,60,000/- on 28.04.2008 was the result of the said letter dated 17.04.2008. The contention of the petitioner is that when the plot was offered to the respondent for possession, it was fully developed in all respects. The adjoining plots No. 1022 and 1024 were duly handed over to the respective allottees on 15.11.2007 and 18.05.2007 and there was no problem in this regard. 7. The learned counsel for petitioner has also drawn our attention to the order made by the Hon’ble Supreme Court of India in Sector-6, Bahadurgarh Plot Holders’ Association (Regd.) and Others Vs. State of Haryana and Another as reported in (1996) 1 Supreme Court Cases 485, saying that the parties to the contract are to abide by the terms and conditions of the contract. Even if the plots have not been fully developed, interest would be payable from the date of the offer of possession of the plots. The learned counsel also invited our attention to the judgment of the Supreme Court in Haryana State Agricultural Marketing Board and Another Vs. Rajpal as reported in (2011) 13 Supreme Court Cases 504, saying that the allottees are liable to pay instalments and simple interest thereon and they could not postpone payment of instalments mainly on the ground that some of the amenities were not ready. 8. The learned counsel for the respondent has also drawn our attention to the authority reported in (2011) 13 SCC 504(Supra) saying that it had been made clear in para 10 of this order that the basic amenities had to be provided within the time prescribed. He invited our attention to para 8 and 9 of the complaint dated 23.05.2008 made by the respondent saying that the respondent had personally met the General Manager of the petition on 18.10.2006 and brought to his notice the factum of lack of development activity. In fact, there was no sewerage, storm water drain, electricity or water supply provided at the site of the plot. Despite giving many applications, physical possession was not handed over to the complainant. In the written statement also, the petitioner had stated in reply to para 8, that the question of delivery or non-delivery of physical possession of plot did not arise. as the plot was allotted to the complainant only on 30.10.2006. Further, on receipt of letter dated 03.05.2007, the respondent had visited the site to take over physical possession of the plot, but it was detected that the basic amenities had not been provided. Moreover, the construction work could not be started by the complainant without the delivery of physical possession. 9. We have examined the entire material on record and given our thoughtful consideration to the arguments advanced before us. From the entire factual matrix of the case, it becomes clear that the allotment letter of residential plot No. 1023, measuring 200 sq. yards in Janta Residential Township, Sector 90-91, Mohali was issued to the complainant, vide letter dated 30.10.2006. It has been made clear in this letter that the total value of the plot in question is Rs. 24,00,000/-, out of which 60% price i.e. Rs. 14,40,000/- had already been deposited by the respondent / complainant, leaving a balance of Rs. 09,60,000/-. It has been stated that the balance amount should be paid in lump sum without interest within a period of 45 days from the date of issue of the allotment letter and 5% rebate on the balance amount shall be admissible. In the alternative, the balance amount could be paid in two six monthly instalments with an interest of 12% per annum. The schedule of payment has also been mentioned in the said letter asking the complainant to make payment of two instalments of Rs. 04,80,000/- each on 30.04.2007 and 30.10.2007. However, the complainant/respondent failed to make payment in time, taking the plea that development works had not been carried out. The orders passed by the District Forum and the State Commission indicate that the petitioner is not entitled to charge penal interest/overdue charges amounting to Rs. 2,38,640/- from the complainant. It is very clear however, from the facts of the case that this amount of Rs. 2,38,640/- is the simple interest of 12% being charged on the payment of two instalments of Rs. 4.80 lacs each. It is a matter of general practice that in similar schemes, when the offer of possession is made by the developer to the allottees, he is asked to make the payment of balance amount in lump sum and enjoy a fixed percentage of the rebate on the outstanding amount. In the alternative, the second option is given to repay the outstanding balance in instalments along with interest at the rates prescribed. In the present case, it has nowhere been stated that Rs. 2,38,640/- is penal interest being charged from the allottees. Terms and conditions spelt out in the allotment letter dated 30.10.2006 make it very clear that this amount is the normal amount of outstanding balance being charged along with 12% simple interest. We therefore, hold that the District Forum and the State Commission have not been able to make a correct appreciation of the facts on record because the allottee is not being charged the penal interest. The order passed by the District Forum and the State Commission are therefore, set aside and the complaint is ordered to be rejected being without any rational basis. 10. It is further stated that the total outstanding amount payable by the complainant upto 28.04.2008 was Rs. 11,98,640/- including 12% simple interest on the outstanding amount. The payment of Rs. 9.60,000/- was made by the complainant on that day leaving behind a balance of Rs. 2,38,640/-. The complainant is however, liable to pay simple interest on outstanding amount till date to the opposite party. It shall be appropriate therefore, that out of the amount paid on 28.04.2008 i.e. 9,60,000/-, the interest accrued till that date should be deducted and the balance amount of outstanding principal should be calculated. On the balance principal amount as it stood on 28.04.2008, the complainant shall be liable to pay simple interest @ 12% per annum to the petitioner till realization and we order accordingly with no order as to costs etc. ..……………………………

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

..……………………………

(DR. B.C. GUPTA)

MEMBER SB/4 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 3860 of 2012 (From the order dated 08.07.2010 in Appeal No. 720 of 2008 of Maharashtra State Consumer Disputes Redressal Commission, Mumbai)

M/s. Samarth Developers A Proprietary firm of Mr. Bhavesh Chunilal Shah R/o/at B/701, Shreenath Kunj, Bhogilal Fadia Road, (Mathuradas Road), Kandivali (W) Mumbai – 400067

2. Mr. Bhavesh Chunilal Shah R/o/at B/701, Shreenath Kunj, Bhogilal Fadia Road, (Mathuradas Road), Kandivali (W) Mumbai – 400067

… Petitioners/Opposite Parties (OP)

Versus

Mrs. Aruna Bipin Parekh Mr. Bipin Hiralal Parekh Both R/o at 311, Dattani Trade Centre Chandavarkar Road, Borivali (W), Mumbai – 400092

BEFORE

For the Petitioner No. 1 : Mr. L.P. Dhir, Advocate

For the Petitioner No. 2 : Mr. Sayid Marsook, Advocate

O R D E R PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

This revision petition has been filed by the Petitioners/OPs against the impugned order dated 08.07.2010 passed by the Maharashtra State Consumer DisputesRedressal Commission, Mumbai (in short, ‘the State Commission’) in Appeal No. 720 of 2008 – M/s. Samarth Developers Vs. Mrs. Aruna Bipin Parekh & Anr. by which, while allowing appeal partly, order passed by District Forum was upheld, but rate of interest was reduced.

2. Brief facts of the case are that complainant/respondent filed complaint before the District Forum and alleged that flat was booked with Petitioner No. 1/OP No. 1 for a total consideration of Rs.10.00 lakhs. OP No. 2/Petitioner No. 2 is sole proprietor of OP No. 1/Petitioner No. 1. Total consideration of Rs.10.00 lakhs was paid by the complainant, but OP neither handed over possession of the flat, nor sale deed was registered. Alleging deficiency on the part of OPs, complainant filed complaint. OP even after service did not appear before the District Forum and learned District Forum proceeded ex-parte against him and allowed complaint and directed OP to handover possession of the flat with clear title or refund Rs.10.00 lakhs with 18% p.a. interest and further to pay compensation of Rs.50,000/- for mental agony. Appeal filed by the petitioner was partly allowed by the learned State Commission vide impugned order and rate of interest was reduced from 18% to 12% p.a. against which, this revision petition has been filed along with application for condonation of delay.

3. Impugned order was passed on 8.7.2010, whereas revision petition was filed on 9.10.2012 along with application for condonation of delay. Paragraphs 3 to 5 of the application for condonation of delay are reproduced as under: “ 3. The petitioners respectfully submit that the original certified copy of order dated 8.7.2010 passed by Hon’ble State Commission was received by their Advocate on 31.8.2010 and sent to the petitioners at their Mumbai address when Mr. Bhavesh Chunilal Shah, the sole proprietor of M/s. Samarth Developers was away at his native place at Gujarat on some domestic problems and therefore, he did not receive the copy of the order.

4. The petitioner No. 2 having suffered losses had disposed of the construction business and had settled down at his native village at & post:Dediapada, Rajpipla, Gujarat and therefore, he did not get the copy of the order sent by his Advocate

5. The petitioners submit that the petitioner no. 2 came back to Mumbai in August 2012 when he received the copy of the order and rushed to his Advocate and instructed him to file this Revision Petition and therefore there is a delay of 22 months which is not intentional but due to circumstances beyond his control. The petitioners are filing this application for condonation of delay of 22 months and pray that the petitioners may kindly be excused and condone the delay in filing this Revision Petition”.

4. In support of this application, petitioner also filed affidavit and later on affidavit of parents of the petitioner was filed on 12.4.2013.

5. Perusal of application for condonation of delay reveals that impugned order was received by petitioner’s Advocate on 31.8.2010 and was sent to the petitioner at his Mumbai address, when petitioner no. 2, the sole proprietor of petitioner no. 1 was away at his native place at Gujarat on account of some domestic problems. It was further alleged in the application that due to losses, petitioner no. 2 disposed of construction business and settled at his native village Dediapada, Rajpipla, Gujarat. As per application, petitioner no. 2 came back to Mumbai in August, 2012; then he received copy of the impugned order and contacted his Advocate, who filed revision petition immediately. In this application, no domestic problem has been explained by the petitioner. In support of this application, petitioner has filed affidavit of his parents, which runs as under:

“We Shri Chinubhai M. Shah aged 76 years and Smt. Savitaben C. Shah aged about 74 years, both of Mumbai, Indian Inhabitants, residing at B/701, Shreeji Krupa, Fadia Road, Kandivali (W), Mumbai – 400 067 do hereby state on soleman affirmation as under:-

We say that because of our old age we are suffering from various ailment and illness since past 3 to 4 years and that our elder son BhaveshChinubhai Shah is being taking care of us since all these years and attends to all our needs and treatments all these years.

We say that he always have to be with us for various reasons and accompany us for our treatments and assist us for various visit to doctors and medical practitioners”.

6. Perusal of affidavit of parents reveals that petitioner is residing at petitioner’s address shown in the petition since a long period and petitioner being eldest son was taking care of his parents and was living with them for their treatment, etc. in Mumbai. Thus, it becomes clear that petitioner was residing in Mumbai at the same address, which has been shown in the impugned order as well as in the revision petition since long period and he has not shifted to Gujarat. Petitioner has not given any specific address of Gujarat and has not shown what was he doing since last 2 years in Gujarat. Thus, it becomes clear that on the false pretext of shifting to Gujarat, this application for condonation of delay of 22 months has been filed by the petitioners. As there is no explanation for condonation of delay, application forcondonation of delay is liable to be dismissed.

7. Learned Counsel for the petitioner during the course of arguments placed reliance on various authorities of the Apex Court. He placed reliance on AIR 1987 SC 1353 – Collector, Land Acquisition, Anantnag and Anr. Vs. Mst . Katiji and Ors. in which it was held that if sufficient cause exists for condonation, delay should be condoned. He also placed reliance on (1998) 2 SCC 142 – G. Ramegowda , Major and others Vs. Special Land Acquisition Officer, Bangalore in which it was held that if delay occurred due to fraud and unusual conduct of Government Pleaders, court may condone the delay in the interest of justice. We agree to the principals laid down in aforesaid citations, but aforesaid citations do not provide any assistance to the cause of petitioner. He has also placed reliance on AIR 1996 SC 1623 –State of Haryana Vs. Chandra Mani & Ors. in which delay of 109 days was condoned. He also placed reliance on (2002) 10 SCC 176 – National Insurance Co. Ltd.Vs. Giga Ram and Ors. in which 105 days delay was allowed to be condoned. He also placed reliance on AIR 2005 SC 2191 – State of Nagaland Vs. Lipok AO and Ors. in which delay of 57 days was allowed to be condoned. He also placed reliance on 2012 (4) SCALE 152 – S. Ganesharaju (D) Thr . L.Rs. and Anr. Vs. Narasamma (D) Thr . L.Rs. and Ors. in which delay of 53 days was allowed to be condoned. In the present case, there is delay of 22 months in filing revision petition and that too with the prayer to condone delay on the basis of false affidavit without any explanation at all. In such circumstances, inordinate delay of 22 months in filing revision petition cannot be condoned and application for condonation of delay is liable to be dismissed with cost.

8. As there is inordinate delay of 22 months, this delay cannot be condoned in the light of the judgment passed by the Hon’ble Apex Court and the National Commission in (1) (2010) 5 SCC 459 – Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation and Anr.; (2) (2012) 3 SCC 563 – Office of The Chief Post Master General and Ors. Vs. Living Media India Ltd. and Anr. and (3) 2012 (2) CPC 3 (State Commission) – Anshul AggarwalVs. New Okhla Industrial Development Authority.

9. Perusal of impugned order reveals that as per argument of Counsel for the petitioner before the State Commission, appropriate relief has already been granted to the petitioner; even then, he has filed this revision petition unnecessarily with so much inordinate delay of 22 months. 10. Consequently, application for condonation of delay is dismissed and in turn, revision petition filed by the petitioner is dismissed at admission stage with Rs.10,000/- as costs.

11. Petitioner is directed to deposit the cost by way of demand draft in the name of “Consumer Welfare Fund” as per Rule 10A of the Consumer Protection Rules, 1987, within four weeks from today. In case, petitioner fails to deposit the cost within the prescribed period, then it shall be liable to pay interest @ 9% p.a. till realization.

12. List for compliance on 3.7.2013.

..………………Sd/-……………

PRESIDING MEMBER

..……………Sd/-………………

( DR. B.C. GUPTA )

REVISION PETITION NO. 355 OF 2013 WITH

(I.A. NO. 1 OF 2013, For Stay)

(Against the order dated 11.12.2012 in Misc.Case No.111/2012 in FA No.1004/2003 of the State Commission, U.P.)

M/s Mukherji Builders & Construction Corporation 52-C, Sun City Vistar, Pilibhit Road, Bareilly ...... Petitioner

Versus

Dr. (Mrs.) Annupurna Mishra W/o Shri R.K. Mishra R/o C/o R.K.Sharma, Shanker Flour Mill, 10, Kankar Tola, Bareilly

…... Respondent

BEFORE:

HON'BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER

HON'BLE MRS. REKHA GUPTA, MEMBER

For the Petitioner : Mr. Arijit Mazumdar, Advocate with

Mr.Anil Mukherjee, partner of petitioner-Corpn.

For the Respondent : Mr. K.S. Singh, Advocate with

Mr. N.N.Sarnava, Advocate

Pronounced on : 26 th April, 2013

PER MR. JUSTICE V.B.GUPTA , PRESIDING MEMBER

Petitioner/opposite party has filed this revision petition u/s 21 read with Section 22B of the Consumer Protection Act, 1986 (for short ‘Act’) for setting aside order dated 11.12.2012, passed by Uttar Pradesh State Consumer Disputes Redressal Commission, Lucknow (short, “State Commission”) in Misc. Case No.111 of 2012 and to transfer Execution Case No.3 of 2011 from District Forum- I, Barielly, to another District Forum within the State of Uttar Pradesh.

2. Present case has a chequered history. It will be fruitful to narrate brief facts of this case. In the year 2000, respondent/complainant (retired Principal of a College and Senior Citizen aged 77 years old) filed Consumer Complaint (No.29/2000) against petitioner. It is alleged that as per brochure circulated by the petitioner in respect of “Divya LokApartments” at Bareilly regarding allotment of houses, respondent applied for allotment of house, vide her application dated 2.12.1997. Accordingly, she was allotted house no.7. As per terms of the allotment, the house was to be completed by 31.3.1999 and respondent was to be given possession of the said house by that date. Respondent deposited a total sum of Rs.4.5 lakhs by March, 1999 with the petitioner on the assurance that she will be given possession of House No.7 by 31.3.1999.

3. On 3.2.2000, respondent visited the spot and was surprised to note that till date, building was incomplete in many respects. As such, possession was not delivered but petitioner was demanding illegal payments from her. Alleging deficiency and unfair trade practice on the part of the petitioner, respondent in her complaint made the following prayers ;

“ A. That the Opposite Party be directed to deliver possession of House No.7 situated at ‘Jagdish Vihar’, Bareilly, duly completed in all respect to the complainant.

B. The Opposite Party be directed to pay compensation of Rs.1,00,000/- to the complainant for the delay which has been caused in completing House No.7, situated at ‘Jagdish Vihar’, Bareilly by the opposite party and for not delivering the possession of the aforesaid house to the complainant as agreed under the terms of Agreement in respect of the disputed house.

C. That the cost of the complaint be awarded to the complainant against the opposite party.”

4. Petitioner in its written statement admitted that respondent has deposited Rs.4.5 lakhs. However, petitioner took the plea that original sum of Rs.1.5 lakhs and interest due to default in payment total amounting to nearly Rs.4 lakhs is long due.

5. District Forum, vide its majority judgment dated 24.2.2003, directed petitioner to handover possession of house in question to the respondent on payment of balance amount of the price along with interest @ 9% p.a.

6. Being aggrieved, both parties filed separate appeals before the State Commission. Vide its judgment dated 27.1.2011, State Commission disposed of both appeals and passed the following order ; “ However, taking into consideration that the complainant committed default in payment of monthly installments, we approve the majority judgment of the members whereby they have awarded interest @ 9% p.a. on the amount of Rs.1,50,000/- and also on the installments which were not paid in time. In our considered opinion the said award is perfectly justified and does not call for any interference.

There is one more aspect of the matter and it is that since Shri Mukherjee himself is in occupation of the house and admittedly as he has been living comfortably, it will compensate him in pecuniary terms also. During the last one decade he might have saved lot of money in terms of rent and at the same time, it cannot be lost sight of that the complainant has been living in a rented accommodation through all these 14 years.

We are therefore, of the decisive view that both the appeals have to be disposed of in terms of above.

Accordingly, both the appeals are decided as stated above and the majority judgment of the Forum below is hereby affirmed. The builders shall hand over possession of the house in question - in ‘as is where is condition’ by 10.3.2011 and while getting the deed of possession executed, the complainant shall pay the entire money as due against her in terms of the District Consumer Forum’s award”.

7. Thereafter, as evident from the list of dates and events, respondent vide letter dated 7.3.2011, forwarded a sum of Rs.2,18,813/- by way of demand draft to the petitioner. But, petitioner vide its letter dated 17.3.2011, returned the demand draft as tendered by the respondent and asked her to tender the actual amount due.

8. Respondent thereafter, filed Execution Case No.3 of 2011 under section 25 read with Section 27 of the Act, on 28.3.2011 in which following prayers were made ;

“ 1. That the opposite party be directed to accept the said amount of Rs.2,18,813/- sent by the applicant through the said Bank Draft or through chequeor cash and hand over the actual possession of the said House No.7, Divya Lok Apartments, in front of Jagdish Vihar, Bareilly to the applicant forthwith and also to pay Rs.2,500/- to the applicant towards the cost in compliance of the orders of the Hon’ble Forum and the Hon’ble State Commission ; 2. That if the opposite party does not deliver the possession of the said house to the applicant within the period specified by the Hon’ble Forum, then the Hon’ble Forum may kindly direct the Senior Superintendent of Police, Barielly to have the possession of the said house delivered to the applicant through police force (after disposing the opposite party from the said house) ;

3. That the Hon’ble Forum by exercising the powers under Section 25 of the Consumer Protection Act, 1986 have the aforesaid orders of the Hon’bleForum and the Hon’ble State Commission complied with by the opposite party.

4. That on account of not complying with the orders of the Hon’ble Forum and the Hon’ble State Commission by the opposite party, kindly take the action against the opposite party under section 27 of the Consumer Protection Act, 1986 and the opposite party be sentenced to undergo imprisonment for 3 years and also to impose a fine of Rs.10,000/- on the opposite party.”

9. It appears that as a counter blast, petitioner also filed Execution Case No.4 of 2011 against respondent on 8.4.2011.

10. Both parties filed their respective objections to the Execution cases. Later on, petitioner filed an application for consolidation of the Execution Cases. District Forum, vide order dated 22.3.2012, consolidated both the Execution Cases and adjourned the matter for 3.4.2012 for hearing. On 3.4.2012, as J.D. had not filed separate application for decree, hence, matter was adjourned to 10.4.2012. It transpires from the record that petitioner has not mentioned as to what happened on 10.4.2012 and thereafter. But, as apparent from record on 1.6.2012 petitioner filed an application for adjournment which was opposed by the counsel for the respondent. However, Petitioner for the reasons best known to him, has not placed on record copy of the order passed by District Forum on this application for adjournment. However, during the course of arguments before this Commission, learned counsel for petitioner has admitted that petitioner’s application seeking adjournment for 1.6.2012, was allowed by the District Forum.

11. Thereafter, on 5.6.2012, petitioner filed an application before the District Forum praying that time be granted to him for bringing order from the State Commission for transfer of the case. However, it would be pertinent to point out that petitioner has not mentioned as to what order was passed on this application. Thereafter, petitioner filed a transfer application u/s 17 (A) of the Act before the State Commission which dismissed the same, vide its impugned order.

12. We have heard learned counsel for the parties and gone through the record.

13. The impugned order passed by the State Commission read as under ;

“Looking into the provisions under Section 17A of the Consumer Protection Act, 1986 that the application of the complainant may be allowed at any stage of the proceeding for transfer of any complaint pending before the District Consumer Forum to another District Consumer Forum within the State and looking into this fact that the applicant is not the complainant and the proceeding pending before the District Consumer Forum is not the complaint. This transfer application does not deserve to be allowed, hence dismissed accordingly.”

14. Application dated 5.6.2012 in which petitioner has made serious allegations against President of District Forum-I, Bareilly is reproduced as under ;

“1. That the said case was fixed for disposal on 1.6.2012, but Shri Nandan Singh, Advocate for the applicant, had gone to his home town Etah to attend the marriage of his nephew and mentioning this very fact he had moved an application for adjournment whereupon Shri Radha Kamal Saraswat, Advocate for the decree-holder had lodged his objection.

2. That the said application was submitted by Shri Anil Mukerji before the Forum at 11.20 a.m. At that time, the learned President of the Forum was not presiding and only Member Shri A.K.Sharma was presiding, who allowing the adjournment applications given in other files, was adjourning them for 25/26.6.2012, but when the Court Master presented the said application of the applicant along with the file before the learned Member, he said that only the learned President of the Forum would take the decision on this application for adjournment, who is taking personal interest in this file and he has been asked not to take decision on the adjournment application in this file, therefore, he would not fix any date in this matter. When Shri A.K.Sharma said this, then the applicant himself, Advocate Shri K.L.Goel, who is the Advocate in this case on behalf of Smt.Uma Katara, Advocate Shri Ravendra Singh, who is the junior of Advocate Shri Nandan Singh and Advocate Shri Abhishek, who is looking after the interest of Mukerji Builders, who were present, Shri K.L.Goel, Advocate in the Open Court at that very time said to Shri A.K.Sharma, Member, that if the learned President of the Forum is taking personal interest in this matter, then it would be proper in the interest of justice to transfer this matter from this Forum to any other Forum and since he is personally interested, therefore, he would certainly give the decision only in his favour of that person in whose favour he is interested. Saying this Shri K.L.Goel, Advocate, returned form the Forum.

3. That the learned President of the Forum presided at about 1.00 p.m. At that very time, Shri Radha Kamal Saraswat, Advocate for the decree-holder,Shri Ghanshyam Sharma, Advocate, who is the former President of the Bar Association Bareilly and Shri Ram Kumar Sharma, Advocate, who is the son-in-law of the decree-holder and also a relative of Shri Ghanshyam Sharma, Advocate reached before the Forum. The learned President of the Forum asked them to sit in his Chamber and he would have talks with them and he would dispose it of today itself, but since the adjournment application has come, therefore, he is fixing it for 5.6.2012, Shri Radha Kamal Saraswat, Advocate in my presence and in the presence of Shri Ravendra Singh also said to Ram Kumar Sharma that talks had taken place and he should not worry and then all the three of them went inside the Chamber of the learned President and came out from there happily after half an hour.

4. That this conduct of the learned President of the Forum is against the judicial practice and the principle of natural justice. He himself is ready and willing to decide the case in favour of the decree-holder. Therefore, justice cannot be expected from him.

5. That application transfer for the said case is being filed before the State Commission on the aforementioned grounds.

6. That the complainant-application has no hope of justice from the learned Forum. The President of the Forum is interested in favour of the decree-holder. From inviting their Advocate, son-in-law of the decree-holder and their relative Advocate Shri Ghanshyam Sharma in the open court for sitting and having talks in his Chamber, it is clear that he would not do the justice. 7. That in other cases 25/26th June is being fixed as the next date of hearing, but in this case, the date is being fixed after 2 or 3 days. From this also, this fact gets force that the President is personally interested.

Therefore, in the interest of justice, it is prayed that time be granted for bringing order from the State Commission for the transfer of the said case so that justice is done to the applicant.

Dated : 5.6 2012 Applicant

Through

Advocate”

15. The gist of allegations made in above application is that ;

“ Shri A.K.Sharma, Learned Member said that only the learned President of the Forum would take the decision on this application for adjournment, who is taking personal interest in this file and he has been asked not to take decision on the adjournment application in this file, therefore, he would not fix any date in this matter”.

16. It does not appeal to common sense that a Member of the Bench of the District Forum would tell the petitioner (being a litigant before that Forum) that President of the Forum is personally interested in this matter. These allegations have been made by the petitioner just to malign the President of Forum and to lower his reputation in the eyes of general public. Interestingly, application dated 5.6.2012, is not supported by affidavits of any of those Advocates who were present along with the petitioner at the time when Mr.A.K.Sharma, Member of the Bench had made above so-called remarks. Further, as per petitioner’s case Shri K.L.Goel, Advocate in open court had said to Shri A.K.Sharma, Member “that if the learned President of the Forum is taking personal interest in this matter then it would be proper in the interest of justice to transfer this matter from this Forum to any other Forum”. Had above remarks been made by Shri A.K.Sharma, Member of the Forum, then what prevented the petitioner from filing affidavits of the above noted by his own Advocates, who were allegedly present at that time. This fact that petitioner has not filed any affidavit of its own advocates alleged to be present at that time, goes on to show that the story put forward by the petitioner in his application dated 5.6.2012, is purely a “Cock and Bull Story”. Moreover, above allegations made against the President of District Forum are in the nature of “hearsay”. 17. The only intention of the petitioner in filing of the transfer application is just to delay the matter and to deprive an old lady who has been fighting litigation for the last more than 13 years, the fruits of the award.

18. It is an admitted fact that petitioner after getting a sum of Rs.4.5 lakhs as early in March, 1999, has been enjoying that money and interestingly, he is also in possession of the flat in question.

19. Petitioner/builder in the present case “wants to have the cake and eat it too”, as admittedly he has received substantial amount of the flat. Thus, petitioner being the builder is enjoying the possession of the flat as well as substantial amount of consideration paid by the respondent. On the other hand, respondent after having paid substantial amount of consideration is still without any roof.

20. Such type of unscrupulous act on the part of petitioner/builder should be dealt with heavy hands, who after grabbing the money from the purchaser, enjoy and utilize their money but does not hand over the flat, on one pretext or the other. Petitioner has made respondent run from one fora to other fora during last 13 years so that respondent cannot have any roof over her head and petitioner can go on enjoying respondent’s money without any hindrance.

21. It is also apparent from the record that petitioner has not approached this Commission with clean hands and has also concealed material facts, since it has not placed on record two/three relevant and important orders passed by the District Forum as observed herein before. On this ground also, petitioner is not entitled to the relief sought. Reference in this regard can usefully be made to the observations made by Hon’ble Supreme Court in Dalip Singh Vs. State of U.P (2010) 2 SCC 114, where it observed ;

“1. For many centuries Indian Society cherished two basic values of life i.e. “satya” (truth) and “ahinsa” (non-violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of the justice-delivery system which was in vague in the pre-Independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post-independence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of falsehood, misrepresentation and suppression of facts in the court proceedings.

2. In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.”

22. Petitioner in the present case has made absolutely baseless, false and frivolous allegations against the President of District Forum, in order to escape from justice and to deprive the respondent fruits of the award. Judgments cited by counsel for petitioner namely ;

(i) State of West Bengal & Others Vs. Shivananda Pathak and Others, (1998) 5 SCC 513 and (ii) Satish Jaggi Vs. State of Chhattisgarh and Others, (2007) 3 SCC 62, are not at all applicable to the facts of the present case.

23. It is well settled that no leniency should be shown to such type of litigants who in order to cover up their own fault and negligence, goes on filing meritless petitions in differentFora. Time and again courts have held that if any litigant approaches the court of equity with unclean hands, suppress the material facts, make false averments in the petition and tries to mislead and hoodwink the judicial Forums, then his petition should be thrown away at the threshold. Equity demand that such unscrupulous litigants whose only aim and object is to deprive the opposite party of the fruits of the decree must be dealt with heavy hands.

24. Now question arises for consideration is as to what should be the quantum of costs which should be imposed upon such petitioner for dragging respondent upto this Forum, when petitioner had no case at all. It is not that every order passed by the judicial Fora is to be challenged by the litigant even if the same are based on sound reasonings. 25. Apex Court in Ramrameshwari evi and Ors. Vs. Nirmala Devi and Ors., Civil Appeal Nos.4912-4913 of 2011 decided on July 4, 2011 has observed ;

“ We are clearly of the view that unless we ensure that wrong –doers are denied profit or undue benefit from the frivolous litigation, it would be difficult to control frivolous and uncalled for litigations. In order to curb uncalled for and frivolous litigation, the Courts have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that court’s otherwise scarce and valuable time is consumed or more appropriately wasted in a large number of uncalled for cases. It is also a matter of common experience that to achieve clandestine objects, false pleas are often taken and forged documents are filed indiscriminately in our courts because they have hardly any apprehension of being prosecuted for perjury by the courts or even pay heavy costs. In Swaran Singh Vs. State of Punjab (2000) 5 SCC 668 this Court was constrained to observe that perjury has become a way of life in our courts.

It is a typical example how a litigation proceeds and continues and in the end there is a profit for the wrongdoers.

Learned Amicus articulated common man’s general impression about litigation in following words ;

“ Make any false averment, conceal any fact, raise any plea, produce any false document, deny any genuine document, it will successfully stall the litigation, and in any case, delay the matter endlessly. The other party will be coerced into a settlement which will be profitable for him and the probability of the court ordering prosecution for perjury is less than that of meeting with an accident while crossing the road.”

While imposing costs we have to take into consideration pragmatic realities and be realistic what the defendants or the respondents had to actually incur in contesting the litigation before different courts. We have to also broadly take into consideration the prevalent fee structure of the lawyers and other miscellaneous expenses which have to be incurred towards drafting and filing of the counter affidavit, miscellaneous charges towards typing, photocopying, court fee etc.

The other factor which should not be forgotten while imposing costs is for how long the defendants or respondents were compelled to contest and defend the litigation in various courts. The appellants in the instant case have harassed the respondents to the hilt for four decades in a totally frivolous and dishonest litigation in various courts. The appellants have also wasted judicial time of the various courts for the last 40 years.

On consideration of totality of the facts and circumstances of this case, we do not find any infirmity in the well-reasoned impugned order/judgment. These appeals are consequently dismissed with costs, which we quantify as Rs.2,00,000/- (Rupees Two Lakhs only). We are imposing the costs not out of anguish but by following the fundamental principle that wrongdoers should not get benefit out of frivolous litigation.”

26. Thus, looking from any angle we do not find any merit in the present revision. Keeping in view the peculiar facts and circumstances of the case and the conduct of petitioner in delaying the matter and creating all sorts of obstructions so that respondent cannot enjoy the fruits of the award, present revision being bogus, frivolous and mischievous one, is liable to be dismissed with punitive costs. 27. Accordingly, we dismiss this revision petition with punitive cost of Rs.50,000/- (Rupees fifty thousand only). Out of total cost imposed upon the petitioner, Rs.25,000/- (Rupees Twenty five thousand only) be paid by way of demand draft to the respondent and balance amount of Rs.25,000/- (Rupees Twenty five thousand only) be deposited by way of demand draft in the name of ‘Consumer Welfare Fund’ as per Rule 10A of Consumer Protection Rules, 1987, within four weeks from today. 28. In case, petitioner fails to pay/deposit the aforesaid costs within the prescribed period, then he shall also be liable to pay interest @ 9% p.a., till realization. 29. List for compliance on 31.5.2013.

…………………..………J

(V.B. GUPTA)

(PRESIDING MEMBER)

…………………...……….

(REKHA GUPTA)

(MEMBER)

REVISION PETITION NO. 3073 OF 2012 (From the order dated 3.7.2012 in First Appeal No.740/2012 of Haryana State Consumer Disputes Redressal Commission, Panchkula)

Kumud Bajaj D/o Shridhar Bajaj A-118, Ground Floor New Friends Colony New Delhi.

….. Petitioner

1. The Saraswati Kunj Co-operative House Building Society Ltd. Through its Chairman Village Wazirabad Distt. Gurgaon

2. The Secretary The Saraswati Kunj Co-operative House Building Society Ltd. Village Wazirabad Tehsil & Distt. Gurgaon

3. The Inspector of Co-operative Societies Office NearJohn Hall Civil Lines Gurgaon Working as Administrator The Saraswati Kunj Co-operative House Building Society Ltd. Village Wazirabad Distt. Gurgaon

….. Respondents

BEFORE:

HON’BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

HON’BLE MR.SURESH CHANDRA, MEMBER

For the Petitioner : Mr. Aseem Mehrotra, Advocate

Pronounced on : 30 th April, 2013

PER SURESH CHANDRA, MEMBER

Petitioner herein is the original complainant. He was a member of the respondent cooperative society/OP No.1 which was to allot developed plot to its members on no profit no loss basis. The respondent society allotted a residential plot bearing No.223 of 100 sq.yds. in Phase-1 of the respondent society to the petitioner @ Rs.775/- per sq.yd. which, as per the allegation in the complaint, was inclusive of external development charges, apart from the cost of share certificate/share amount and initial cost of land. A passbook was issued by the respondent / OP cooperative society to the petitioner for maintaining record of payments made by him to the society. Allegedly, the entire cost of the plot was paid by the petitioner. Though the possession of the plot was to be delivered within two years but it was not handed over and also no sale deed etc. was executed. Subsequently, on account of financial irregularities, the administration of the society was put under the control of respondent No.3/OP No.3 by the State Government. As per a press note issued by respondent No.3, the petitioner submitted his claim before respondent No.3 in January, 2005 but the respondent No.3 failed to resolve the dispute/grievance of the complainant. Accordingly, a complaint was filed by the petitioner against the respondents/opposite parties before the District Consumer Disputes Redressal Commission, Gurgaon vide C.C. No.658 of 2006.

2. The District Forum vide its order dated 9.1.2012 allowed the complaint and held that the complainant was entitled to physical possession of the plot in question. The District Forum, therefore, directed the OP-1 society through its management/the then administrators to intimate the balance cost, if any, of the plot in dispute within 30 days and the same was required to be paid by the complainant within 30 days and thereafter the respondent society was directed to deliver the physical possession after completing all formalities within 3 months. The complainant was also held entitled to get the conveyance deed of the plot in dispute executed and registered on payment of the requisite stamp duty and registration fee. The District Forum further held that in case the opposite party was unable to deliver the physical possession of the plot in dispute, then in the alternative, the complainant would be entitled to a plot of same size at same price in the same area or adjoining to it. However, in case due to some unavoidable circumstances beyond its control, the OP society was unable to allot a plot to the complainant then the complainant would be entitled to refund of his amount of Rs.77,500/- with interest @ 12% p.a. from the date of each deposit till actual realization. In case, however, the physical possession was handed over by the society to the complainant in that case, the complainant would be entitled to interest @ 9% p.a. after two years from initial deposit till the physical possession of the plot. The District Forum also held that since the opposite party had caused mental agony to the complainant since 1996, the complainant was entitled to a compensation of Rs.20,000/- besides litigation charges of Rs.5,000/-.

3. Feeling aggrieved by the aforesaid order of the District Forum, the complainant filed an appeal before the State Commission wherein appellant sought direction against the opposite party to hand over the physical possession of the original allotted plot or some alternative plot, besides compensation, litigation expenses etc. There was, however, delay of 166 days beyond the prescribed period in filing the appeal by the complainant before the State Commission for which he filed an application for condonation of delay. Not feeling satisfied with the explanation given in the application for condonaton of delay of 166 days in filing the appeal, the State Commission vide its impugned order dated 3.7.2012 rejected the application of the complainant for condonation of delay in filing the appeal. Consequently, the State Commission vide its impugned order passed in FA No.740 of 2012 dismissed the appeal as time-barred in limine. It is against this order of the State Commission that the complainant has filed the present revision petition.

4. We have heard Shri Aseem Malhotra, Advocate, learned counsel for the petitioner and perused the record. Learned counsel has submitted that the impugned order of the State Commission is not sustainable for the reason that the State Commission has failed to appreciate that there was a genuine cause which prevented the appellant from filing the appeal against the order of the State Commission within the period of limitation. Expanding on the argument, learned counsel submitted that in April, 2012, there was marriage of the sister of petitioner and as the petitioner was busy in arrangements of marriage, she could not contact her counsel to instruct him to prepare and file the appeal. It is further contented that even on merits, the order of State Commission is flawed because the State Commission has failed to appreciate that by maintaining the order of the District Forum giving alternative to the respondent to return the money with interest instead of handing over possession of the plot it has actually negated the alternative relief of delivery of possession of the plot. Thus learned counsel has urged us to accept the revision petition and set aside the impugned order.

5. We are not convinced with the above submissions. On perusal of record, we find that State Commission has dismissed the appeal in liminie because it was barred by limitation. While rejecting the application of petitioner for condonation of delay in filing the appeal, the State Commission has recording the following observations:

“As regards the ground taken in the first application it would transpire that totally vague and ambiguous assertion has been made. In the application, condonation has been sought by the appellant on the ground that in the month of April, 2012 there was marriage of her sister and for that reason, she could not contact her counsel for filing the present appeal. The plea taken by the appellant is not acceptable. Admittedly, the appellant came to know about the disposal of the complaint on 9.1.2012, whereas marriage of her sister was in the month of April, 2012. Therefore, there was sufficient time for the appellant to have file the present appeal before this Commission with the prescribed period of 30 days. But no effort was made by the appellant in this regard. Hence, there was inaction and negligence on the part of the appellant. No sufficient reason is made out in favour of the appellant for the condonation of huge delay in filing the appeal. The Hon’ble Apex Court has also observed in case titled “State of Nagaland Vs. Lipokao and Others reported in 2005(2) RCR (Criminal) 414 that “proof of sufficient cause is a condition precedent for exercise of discretion by the court in condoning the delay”. Further in case titled “D. Gopinathan Pillai Vs. State of Kerala and another, reported in (2007) 2 SCC, 322, it has been held by the Apex Court that “when mandatory provision is not complied and the delay is not properly, satisfactorily and convincingly explained, the court cannot condone the delay on sympathetic ground only”. Under the circumstances, the reasons given in the application were taken as inadequate and insufficient to condone the delay. The ratio of the above mentioned case fully applies to the facts and circumstances of the present case. Therefore, the ground stated in the application cannot constitute sufficient cause so as to condone the delay in filing the appeal as prayed for in the application from the side of the appellants. Therefore, the application for condonation of delay in filing the appeal is rejected.”

6. On perusal of the record, we find that State Commission rejected the application for condonation of delay essentially for the reason that appellant came to know about order of the District Forum on 09.01.2012 whereas admittedly the marriage of her sister was scheduled in the month of April, 2012. From this, it is evident that limitation prescribed for filing of appeal actually expired almost two months prior to the scheduled marriage of the sister of petitioner. In view of this, we do not find any infirmity in the approach adopted by the State Commission which may call for interference by the National Commission in revisional jurisdiction.

7. Even on merits, we do not find force in the submission of learned counsel for the petitioner. The refund of money paid by the petitioner with interest is the last option. The District Forum concerned has directed that firstly the opposite party should deliver possession of plot actually booked by the petitioner and if it is not possible due to some reason, then opposite party should give him possession by an alternative plot of similar size in some other nearby locality and if that is also not possible, then as the last resort, District Forum has directed Opposite party to refund money with interest which approach adopted by District Forum cannot be faulted.

8. In view of the discussion above, we do not find any infirmity in the impugned order of the State Commission which may call for our interference in revisional jurisdiction. Revision petition is accordingly dismissed.

……………Sd/-……..………..

(AJIT BHARIHOKE, J.)

PRESIDING MEMBER

…………Sd/-………..………..

(SURESH CHANDRA)

MEMBER SS/ NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 281 OF 2013 (Against the order dated 12.10.2012 in F.A . No. A/11/787 of the State Consumer Disputes Redressal Commission, Maharashtra, Mumbai)

WITH IA/501/2013(STAY)

M/s Sagar Shopping Developers Acting through its partner, Mr. Saddruddin Mohammed Maredia Having its office at Hotel Heritage Building, Sant Sauta Marg, Byculla (East), Mumbai 400027

...... Petitioner (s)

Versus

Anil Dattatrey Kadam Through his Constituted Attorney, Ms. Amita Laxmikant Hatkar, Residing at 24/P, Shefali Co-operative Housing Society Ltd., 62, Phirozsha Road, Santa Cruz (West), Mumbai 400054

…….Respondent (s)

BEFORE:

HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER

HON’BLE DR. S.M. KANTIKAR, MEMBER

For the Petitioner : Mr. Vikram Mehta, Advocate

For the Respondent/

Caveator : Mr. Sanjoy Kr. Ghosh, Advocate

Pronounced on : 1 st May 2013

1. The case of the complainant/respondent, Shri Anil Dattartray Kadam is that M/s

Sagar Shopping Developers, OP is a developer/builder. The OP was constructing flats in ‘Sagar Avenue-II’ and the complainant paid a cheque of Rs. 1,00,000/- as advance money and purchased flat bearing No. E-917, carpet area 451 sq. ft. @ Rs. 3400/- per sqare feet on 19.11.2005. Thereafter, the complainant gave other two cheques of Rs.

1,00,000/- each total being Rs. 3,00,000/- against the cost of the said flat. The OP issued a receipt for the same on 03.02.2006. The complainant asked the petitioner to execute the agreement but he put off the matter on one pretext or the other.

2. The construction of the building was commenced by the petitioner/OP as per the plans sanctioned by the Municipal Corporation of Mumbai. Thereafter, some disputes cropped up with the encroachers and purchasers of other building being Sagar Regency on 23.04.2004. Hon’ble High Court vide its order dated 23.04.2007, directed the petitioner not to construct the said Sagar Avenue-II building within 15 feet from another building being Sagar Regency. Consequently, the OP amended the plans of Sagar

Avenue-II building. The construction of Sagar Avenue-II was required to be demolished and fresh plans were submitted for approval of the Municipal Corporation.

3. In view of the above mentioned circumstances, the OP returned the interim amount of Rs. 3,00,000/- of the complainant vide letter dated 26.07.2007, but the complainant refused to accept the same and returned it. Ultimately, the complainant sent a legal notice dated 17.07.2007 for execution of sale deed in respect of the above said flat. The said legal notice did not evoke any response. Therefore, complaint was filed before the District Forum. The District Forum partly allowed the complaint. He directed the OP to execute sale deed in respect of flat measuring 451sq. ft. carpet area in Sagar Avenue-II @ 3400/- per sq. ft. within a period of 8 weeks from the receipt of the order passed by the District Forum and directed him to complete the incomplete work of the building project, if any.

4. The State Commission also dismissed the appeal.

5. We have heard the counsel for the petitioner at the time of admission of this revision petition. He submitted that the petitioner does not have any flat and the order passed by the District Forum cannot be executed. He also argued that no agreement was ever executed and the complainant is not bound by any agreement. It was argued that the project was not approved by the local authority and as such the OP cannot be held liable for the same. Again, there was no violation whatsoever of Maharashtra

Ownershilp Flats (Regulation of the Promotion of Construction Sale Management and

Transfer) Act (In short, MOFA) of 1963.

6. Instead of coming to the point, the learned counsel for the petitioner has tried to stretch the things a bit far. In the petition itself, the petitioner himself admits that a sum of Rs. 1,00,000/- was accepted towards tentative booking in the Sagar Avenue-II. It is also admitted that the total sum of Rs. 3,00,000/- was obtained from the complainant. The petitioner did not enter in the agreement and as such he committed violation under the provisions of Section 4 of MOFA. The State Commission came to the conclusion that the project was sanctioned by the Local Authority in the year 2005 and permission was valid till 09.12.2007. As per the Hon’ble High Court’s order mentioned above, it appears that the petitioner had encroached upon the property of another

Builder. The Hon’ble High Court had to interfere due to the omissions and commissions of the petitioner itself.

6. Again, the petitioner has not approached the consumer fora with clean hands. Although, he accepted Rs. 3,00,000/-, yet, till the filing of this revision petition, he is not willing to disclose the price of booking rate of per square feet. For the following reasons, the rate disclosed by the complainant @ Rs. 3400/- per sq. ft. appears to be correct. Sh. Vinod Bhanushali, property dealer stated that the booking rate of the flat in dispute was Rs. 3,400/- per sq.ft. The petitioner has tried to pull the wool in the eyes of the Law. The Brochure of the project produced by the petitioner mentions about the location and area of the flat. However, very smartly it does not indicate the selling rate. The petitioner who have sold many of the flats, did not enter into agreement to show that the rate per sq. ft. was higher than Rs. 3400/-. No such document saw the light of the day. It is also surprising to note that the receipt issued in favour of the complainant mentions about the name of project, floor and the flat No. to be sold to the complainant. This receipt is a substitute for the agreement. The privity of the contract between the parties stand established. Certain harsh realities cannot be glossed over. Facts are the stubborn things. It is difficult to fathom why should anyone take a dallop of injustice from someone else because he is in a more influential position. The skimble-scamble explanation given by the petitioner does not help the cause of justice at all. If he has no place at Sagar Avenue-II, he must provide or create the same. The petitioner cannot befool the people like this. The building is ready and he must provide accommodation to the complainant. 7. It must be mentioned here that the District Forum had passed the order on 15.07.2011. Now, almost 2 years have elapsed. The said order has not been complied with. The complainant paid the amount of Rs. 3,00,000/- in the fond hope of getting the flat in the year 2007. Since then six years have elapsed. The attainment of justice is the highest human endeavor. Justice delayed Is not only Justice denied- it is also Justice Circumvented, Justice mocked and the system of Justice undermined. 8. We, therefore give 30 days time to the petitioner to comply with the order rendered by the District Forum, otherwise the petitioner will have to pay additional costs of Rs. 2,500/- per day to the complainant till the order is complied with. The executing court must take all the steps under which it is authorized to execute this order. The petitioner has wasted the time of the District Forum, State Commission as well as National Commission, for which we impose costs of Rs. 1,00,000/- upon the petitioner, which will be deposited with the Consumer Welfare Fund established by the Central Government under Section 12 (3) read with Rule 10(a) of the Consumer Protection Act, 1986, of the Central Excise Act, 1944, by way of demand draft in favour of P.A.O., Ministry of Consumer Affairs, payable at New Delhi, within one month from today, failing which it will carry interest @9% per annum till its realization. Learned Registrar of this Commission shall see compliance of the order under Section 25 of the Consumer Protection Act, 1986.

..…………………..………J

(J.M. MALIK)

PRESIDING MEMBER

……………….……………

(DR.S.M. KANTIKAR)

MEMBER

Jr/10 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 1862 OF 2012 (From order dated 20.12.2011 in First Appeal No. 1630 & 1680 of 2011 of the Haryana State Consumer Disputes Redressal Commission, Panchkula)

Sangeeta Sharma W/o Sh. Sunil Sharma R/o Flat No. 306, GHS 34, Sector-20 Panchkula … Petitioner (s) Versus M/s G.S. Promoters & Developers APS Group, SCO No. 409, Sector-20 Panchkula … Respondent (s)

BEFORE:

HON’BLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBER HON’BLE DR. S. M. KANTIKAR, MEMBER

For the Petitioner (s) : Mr. Sumit Chander, Advocate For the Respondent (s) : Mr. Madhu Ranjan, Advocate

Pronounced on : May, 2013

1. The facts germane to the case of Smt. Sangeeta Sharma, the complainant are

these. She purchased flat No. 637 “Panchkula Heights” situated at Peermuchalla

Zirakpur, Punjab from M/s G.S.Promoters and Developers, Panchkula, , Opposite

Party, for a sum of Rs. 24,00,000/-. She paid a total sum of Rs. 22,00,000/- to the

OP. She was to pay a sum of Rs. 2,00,000/- at the time of delivery of possession of

the flat, which was to be given on 30.11.2010. It was also stipulated in the

agreement dated 11.05.2010 that in event of failure of delivery of the possession of

the flat, the OP was under an obligation to pay the penalty of Rs. 9,000/- per month (i.e. Rs.5/- per square feet per month). The OP neither delivered the possession nor

paid the penalty. The District Forum held that OP is guilty of deficiency in service

and also of adapting unfair trade practice. The District Forum allowed the present

complaint and gave the following directions:-

“i) The opposite party is directed to offer possession of the

apartment in question to the complainant forthwith. However, the

complainant will pay the balance amount of Rs. 2 lacs at the time of

delivery of possession as agreed between the parties in the Agreement to

Sell (Exhibit C-1); ii) The opposite party is directed to refund/adjust the

penalty/compensation @ Rs. 5/- per square feet per month to the

complainant on super area of the apartment i.e. 1800 square feet on

account of delay in offer of possession to be reckoned with 1.3.2011 till

the date of offer of possession to the complainant alongwith simple

interest @ 24% per annum thereon. iii) The opposite party is directed to grant a compensation of Rs. 15,000/-

to the complainant on account of its deficiency in service and adopting

unfair trade practices and also for causing mental agony and

unnecessary harassment to the complainant. iv) The opposite party is directed to pay an amount of Rs. 5000/- to the

complainant as costs of litigation.”

2. Aggrieved by that order, the OP filed an appeal before the State Commission.

3. The State Commission vide its order dated 20.12.2011, placed reliance on Apex Court authority reported in the case titled “Sonic Surgincal Vs. National Insurance Company Limited, reported in 2010 CTJ 2, it has been held by the Hon’ble Apex Court that expression ‘branch office’ in the Act means the branch office where the cause of action has arisen. Admittedly, in the present case, the flat in question of the complainant is located at Peermuchalla, Zirakpur, Punjab, therefore, complainant has no cause of action to file the complaint at District Forum, Panchkula.”

4. We have heard both the counsel for the parties. It appears that the State Commission has wrongly applied the above said authority in this case. Section 4 of the said authority i.e. Sonic Surgical Versus National Insurance Co. Ltd. (Supra), it was held in para No. 4 & 5:

“4. In our opinion, no part of the cause of action arose at Chandigarh. It is well settled that the expression ‘cause of action’ means that bundle of facts which gives rise to a right or liability. In the present case admittedly the fire broke out in the godown of the appellant at Ambala. The insurance policy was also taken at Ambala and the claim for compensation was also made at Ambala. 5. Thus no part of the cause of action arose in Chandigarh.”

5. In the instant case attention of the Commission was invited towards the agreement arrived between the parties. Agreement to sell clearly goes to show that this was made at Panchkula on 11.05.2010. It further stipulates:

“AND WHEREAS the above said buyer is interested to purchase a House/Flat No. 637 at Level/floor Sixth of super area 1800 sq.ft. (approx.) including stilt area, lift, stairs etc. in the project Panchkula Heights situated at Peermuchalla NSC Zirakpur (Pb) and the said House/Flat is under construction and free from all sorts of encumbrance i.e. sale, gift, mortgage, claims, charges, litigation etc.”

6. On the next page there is a note which is reproduced as follows:-

“ NOTE: The installment will be acceptable only by way of cash or local cheques/DD in favour of G.S. PROMOTERS & DEVELOPERS payable at Chandigarh/ Panchkula.”

7. The allotment letter was issued by the OP from Panchkula. The same was also filed on the record. It is thus clear that part of cause of action arose at Panchkula.

8. This view further finds support from the two judgments of this Commission reported in Smt. Shanti Vs. M/s Ansal Housing & Construction Ltd. in First Appeal No. 142 of 2001 and Neha Singhal Vs M/s Unitech Limited in First Appeal No. 426 of 2010. Consequently, we find that the order passed by the State Commission is not legally tenable, therefore, we set aside the same to this extent.

9. The State Commission has also discussed the entire case of the complainant. He did not pick up a conflict with the main order passed by the District Forum. It was also mentioned that the District Forum has placed reliance on an authority of the Apex Court reported in the case of “Ghaziabad Development Authority versus Balbir Singh (2004(1)CPC 660” wherein the Supreme Court was pleased to hold:- “ ïf a consumer had to live in rented house due to delay in delivery of possession, he would be entitled to claim amount of rent he has paid during that period” It has been further observed by the Hon’ble Apex Court that “Compensation can be awarded no only for loss of goods but also for causing mental agony due to rendering of deficient service---- Such compensation is a check on arbitrary and capricious exercise of power of these bodies.”

10. We have also perused the judgment of District Forum. We see no flaw therein. Consequently, we accept the revision petition and restore the order passed by the District Forum. The petitioners are directed to comply with this order within 45 days from today or else, the opposite party will have to pay penalty of Rs. 1,000/- per day to the complainant, in addition, till the order is complied with.

..…………………………

(J. M. MALIK,J.)

PRES IDING MEMBER

……………….……………

(DR.S.M. KANTIKAR)

MEMBER

Jr/1 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 4357 of 2012 (From the order dated 19.07.2012 in Appeal No. A/12/161 of Maharashtra State Consumer Disputes Redressal Commission, Mumbai)

City Life Developers Agarwal Golden Chambers, 5th Floor, Fund Republic Road, Plot No. 13/A, Behind Balaji Telefilm, Off. New Link Road, Andheri West, Mumbai – 400053 (Maharashtra)

… Petitioner/Opp. Party (OP)

Versus

1. Mr. Vencillous Fernandes R/o EC-30, B-202, Sai Seva Co-op. Hsg. Soc. Ltd. Sai Leela Evershine City Vasai (East) 401205 (Maharashtra)

2. Mrs. Sandra Fernandes R/o EC-30, B-202, Sai Seva Co-op. Hsg. Soc. Ltd. Sai Leela Evershine City Vasai (East) 401205 (Maharashtra)

… Respondents/Complainants

BEFORE

For the Petitioner : Mr. Vimal Khanna, Advocate

For the Respondents : Mr. S.B. Prabhavalkar, Advocate Proxy

PRONOUNCED ON 3 rd May, 2013

O R D E R

This revision petition has been filed by the Petitioner/Opposite party against the impugned order dated 19.7.2012 passed by the Maharashtra State Consumer Disputes

Redressal Commission, Mumbai (in short, ‘the State Commission’) in Appeal No.

A/12/161 – City Life Developers Vs. Mr. Vencillous Fernandes & Anr. by which, appeal filed by the petitioner was dismissed as barred by limitation.

2. Brief facts of the case are that complainants/respondents filed complaint against the OP/Petitioner and learned District Forum vide order dated 12.12.2011, while allowing complaint directed OP to give possession of flat after receiving payment of

Rs.7,94,563/- from the complainant. Appeal filed by the petitioner was dismissed by learned State Commission vide impugned order on the ground that appeal was barred by limitation and no application for condonation of delay was filed against which, this revision petition has been filed.

3. Heard learned Counsel for the parties at admission stage and perused record.

4. Learned Counsel for the petitioner submitted that learned State Commission has committed error in dismissing appeal, as petitioner was ready to file application for condonation of delay of six days; hence, revision petition be allowed and matter may be remanded back to the State Commission for disposal on merits. On the other hand, learned Counsel for the respondent submitted that order passed by learned State

Commission is in accordance with law, which does not call for any interference; hence, revision petition be dismissed.

5. Perusal of record reveals that appeal was filed with delay of six days. No application for condonation of delay was filed. During the course of arguments before the learned State Commission, petitioner’s Counsel sought permission to file application for condonation of delay, but permission was not given on the assumption that application for condonation of delay can be filed along with appeal only and not subsequently.

6. Application for condonation of delay is normally filed by the party with Memo of

Appeal, but there is no bar in filing such application even after filing appeal when fact of delay is brought to the notice of appellant by the Registry while examining defects or on raising objection by respondent or on suggestion of court hearing the appeal. Learned

State Commission ought to have allowed petitioner to file application for condonation of delay and only after considering application for condonation of delay, appeal should have been decided.

7. Consequently, we allow the revision petition and order passed by learned State

Commission in Appeal No. A/12/161 is set aside and petitioner is permitted to file application for condonation of delay with the State Commission and learned State

Commission shall decide application for condonation of delay in accordance with law and proceed with the appeal. There shall be no order as to costs.

8. Parties are directed to appear before the State Commission on 29th May, 2013. ..………………Sd/-……………

PRESIDING MEMBER

..……………Sd/-………………

( DR. B.C. GUPTA )

REVISION PETITION NO. 2152 of 2008 (From the order dated 29.02.2008 in Appeal No. 2341/2007 of Karnataka State Consumer Disputes Redressal Commission, Bangalore)

M/s. Bindu Promoters & Developers A Partnership Firm No.30/4, 46th Cross 4th Block, Rajajinagar Bangalore – 560010 Karnataka Represented by its Managing Partner Mr. Jayesh Z.Shah S/o Zaverchand N. Shah

… Petitioners/Opp. Parties (OP)

Versus Mrs. Rekha S. Shiyal W/o Mr. Surendra B. Shiyal No.5, S.V. Lane, 3rd Cross Chickpet, Bangalore – 560053 Karnataka

BEFORE

For the Petitioners : Mr. Manjunath Meled, Advocate

For Mr. Subramaniyam Prasad, Advocate For the Respondent : Mr. Shekhar G. Devasa, Advocate

PRONOUNCED ON 6 th May, 2013

O R D E R

This revision petition has been filed by the Petitioners/Opposite parties against the impugned order dated 29.2.2008 passed by the Karnataka State Consumer Disputes

Redressal Commission, Bangalore (in short, ‘the State Commission’) in Appeal No.

2341 of 2007 – Mrs. Rekha S. Shiyal Vs. M/s. Bindu Promoters & Developers by which, while allowing appeal, order of District Forum dismissing complaint was set aside.

2. Brief facts of the case are that complainant/respondent paid a sum of

Rs.16,65,900/- to OP/petitioner for purchase of a flat. As per agreement, Rs.

17,49,825/- was to be paid by the complainant to OP. OP asked complainant to get the sale deed registered and pay balance amount, but as the complainant wanted to resell the flat to somebody else; so, he was not in a position to get the sale deed registered. In such circumstances, OP terminated the contact unilaterally and refunded the amount paid by the complainant, which was accepted by the complainant, under protest. Complainant filed complaint before the District Forum alleging deficiency on the part of OP and learned District Forum after hearing both the parties, dismissed complaint, as money had already been refunded. Appeal filed by the complainant was allowed by the State Commission vide impugned order and OP was directed to pay interest @ 12% p.a. on the amount refunded, from 30.6.2006 last date of payment, till refund of money against which, this revision petition has been filed.

3. Heard learned Counsel for the parties and perused record.

4. Learned Counsel for the petitioner submitted that as per impugned order, learned

State Commission directed petitioner to pay interest from the last date of payment till realization, but as submitted by complainant, last date of payment was shown as

30.6.2006, whereas last date of payment was 3.4.2007; hence, revision petition be allowed and petitioner be directed to pay interest from 4.4.2007 instead of

30.6.2006. On the other hand, learned Counsel for the respondent submitted that as per respondent’s affidavit, last date of payment is 30.6.2006 and in such circumstances, order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.

5. No doubt, respondent/complainant in paragraph 6 of his affidavit of evidence has shown payment starting from 11.4.2005 and shown last payment on 30.6.2006, but respondent has not given any cheque number regarding payment shown in paragraph

6. On the other hand, petitioner submitted Annexure P-9 depicting all payments made by respondent by cheques starting from 6.4.2005 to 3.4.2007, last payment of

Rs.15,900/- by cheque dated 3.4.2007. Perusal of statement of payment shown by the complainant does not tally with the statement given by OP, but total figure of payment is the same. As the payment has been received by OP by cheque issued by the complainant of Amanath Co-op. Bank Ltd., it would be appropriate to accept Annexure

P-9 submitted by OP and in such circumstances, it can be held that complainant made last payment by cheque on 3.4.2007 and learned State Commission has wrongly mentioned last date of payment as 30.6.2006 and to this extent, the impugned order is liable to be modified.

6. Consequently, revision petition filed by the petitioner against the respondent is partly allowed and petitioner is directed to pay interest @ 12% p.a. on Rs.16,65,900/- from 4.4.2007 instead of 30.6.2006, till date of refund of the money to the

Complainant. Parties to bear their own costs. ..……………Sd/-………………

PRESIDING MEMBER

..………Sd/-…………………

( DR. B.C. GUPTA )

(Against the order dated 4.01.2011 in Misc. Appl. No. 688/2010 in Complaint No. 37 / 2010 of State Consumer Disputes Redressal Commission, Haryana)

DLF Limited, DLF Centre, Sansad Marg, New Delhi – 110001. Through Ms. Poonam Madan Vice – President (Legal), M/s. DLF Limited ... Petitioner Versus Mridul Estate (Pvt.) Ltd., H-108, Connaught Place, New Delhi – 110001 Through its Director, Shri Kamal Kumar Singh … Respondent

(Against the order dated 17.03.2011 in No. MA-259/2010 in CC/48/10 of State Consumer Disputes Redressal Commission, West Bengal)

South City Projects (Kolkata) Ltd. Registered office at 375, Prince Anwar Shah Road, Kolkata – 700068 ... Petitioner Versus Nawal Kishore Banka, 24-A, Shakespeare Sarani, 2nd Floor, Room No. 6, Kolkata – 700017 … Respondent

(Against the order dated 2.11.2012 in Misc. Appl. No. 262/2012 in Complaint No. 8 / 2012 of State Consumer Disputes Redressal Commission, West Bengal)

DLF Limited, DLF IT Park DLF Building, Ground Floor, Tower 2, Major Arterial Road, Block AF, New Town Rajarhat, Kolkata Through its Auth. Signatory ... Petitioner Versus Paradip Cargo Carriers Pvt. Ltd. Through its Managing Director, Mr. Bijay Kumar Kandoi, S/o Late Sh. Manmal Kandoi, At: Professorpara, Cuttack -753 003 (Odisha) … Respondent

MISCELLANEOUS APPLICATION NO. 210 OF 2011 (For reference of the matter to arbitration) IN CONSUMER COMPLAINT NO. 183 OF 2010

Atlanta Systems Pvt. Ltd. Through Mr. Sandeep Narula Regd. Office M-135, Second Floor, Opp. Super Bazaar Connaught Place, New Delhi – 110001. … Complainant

Versus 1. Negolice India Ltd. Through Mr. Mahesh Bhagchandha E-13/29, Harsha Bhawan Connaught Circus New Delhi – 110001

2. Delhi Development Authority, Through Vice-Chairman, Vikas Sadan, , New Delhi. …. Opposite Parties

MISCELLANEOUS APPLICATION NO. 3 OF 2011 (For reference of the matter to arbitration) IN CONSUMER COMPLAINT NO. 188 OF 2010

1. Mr. Rohit Shroff, S/o Mr. Rajan Shroff 2. Mrs. Sushmita Shroff W/o Mr. Rohit Shroff Both R/o 6B, Keyatalla Road, Kolkata – 700029. 3. Mrs. Enakshi Tagore W/o Late S.N. Tagore 4. Mr. Rudrendra Nath Tagore, S/o Late S.N. Both R/o “Sunflower Garden” Flat no. 1D, 74, Topsia Road, Kolkata – 700046. Complainant No. 2 to 4 are represented by complainant no.1, Mr. Rohit Shroff, who is the Special Power of Attorney holder of all the other three complainants. ….. Complainants

Versus

Renault Developers Private Limited Office at 43 / 3, Hazra Road, P.S. Ballygunge, Kolkata – 700019 …. Opposite Party

Interim Application NO.1579/2013 (For withdrawal filed by Complainant No.51) And Interim Application No. 465 OF 2013 (For Deletion of name) IN CONSUMER COMPLAINT NO. 240 OF 2010

Aghore Bhattacharya & Ors. All the complainants are represented by their constituted Attorney, Shri Ranjeet Shankar Guha, S/o Late Major Subodh Chandra Guha of 7K, Cornfield Road, Kolkata – 700019 ….. Complainants

Versus

Rosedale Developers Pvt. Ltd. Rep. by its Managing Director, SHARCHI TOWER, 3rd Floor (West Block), 686, Anandapur, Kolkata – 700107. …. Opposite Party

MISCELLANEOUS APPLICATION NO. 231 OF 2011 (For referral of matter to Arbitration) IN CONSUMER COMPLAINT NO. 254 OF 2010

1. Mr. Vivek Jain 2. Mrs. Khyati Goenka Both R/o 40, Paras Nath Street, Muzaffar Nagar, U.P. 251002.

3. Mr. Shrinivas Mishra 4. Mrs. Nupur Trivedi

Both R/o D-313, Sungrace, Raheja Vihar, Chandivali, Mumbai

5. Mr. Aarkesh Anand 6. Mr. Prashant Anand Both R/o B-1/197, First Floor, Janakpuri, Delhi – 110058.

7. Mr. Dinesh Kumar Agrawalla

8. Mrs. Rupam Tiwary R/o Flat No. 501, HUDDA COGHS PLOT No. 1, Sector – 56, Gurgaon Haryana ….. Complainants

Versus 1. M/s. Unitech Ltd. Registered Office at 6, Community Centre, Saket, New Delhi – 110017.

2. ICICI HFC Ltd. Home Loans Division, SCO – 18 & 19, 2nd Floor, HUDA Shopping Complex, Sector – 14, Gurgaon …. Opposite Parties

INTERIM APPLICATION NO. 2 OF 2011 (For referral of matter to Arbitration) IN

CONSUMER COMPLAINT NO. 58 OF 2011

1. Mr. Vinod Kumar 2. Mrs. Anjali Kumar 3. Ms. Madhuban Kumar Through her Attorney, Mr. Vinod Kumar.

All R/o House No. 778, Sector – 17, Faridabad Haryana ….. Complainants

Versus

Uppal Housing Limited, (formerly known as Uppal Housing Private Limited) Having its Registered Office at S-39 A, Panchsheel Park New Delhi – 110017 Through its Chairman Mr. B.K. Uppal …. Opposite Party

INTERIM APPLICATION NO. 305 / 2013 (For referral of the matter to arbitration) IN CONSUMER COMPLAINT NO. 110 OF 2011

1. Sheikh Mohammed Naqi and another Complainants

Versus DLF Commercial Developers Ltd. …. Opposite Party

INTERIM APPLICATION NO. 532 OF 2013 (FOR DISMISSAL OF COMPLAINT) IN CONSUMER COMPLAINT NO. 241 OF 2011

1. Mrs. Anjana Arora and another … Complainant Versus 1. M/s. Unitech Ltd. And ICICI HFC Ltd. …. Opposite Parties

INTERIM APPLICATION NO. 531 OF 2013 (FOR DISMISSAL OF COMPLAINT) IN CONSUMER COMPLAINT NO. 273 OF 2011

1. Mr. Hitendra Mahajan and another … Complainant

Versus

1. M/s. Unitech Ltd. And ICICI HFC Ltd. Opposite Parties

AND CONSUMER COMPLAINT NO. 226 OF 2012

1. Ajay Vaishnavi & another … Complainants

Versus 1. M/s. Unitech Ltd. …. Opposite Parties

BEFORE: - HON’BLE MR. JUSTICE ASHOK BHAN, PRESIDENT HON’BLE MRS. VINEETA RAI, MEMBER HON’BLE DR. S.M. KANTIKAR, MEMBER

IN RP/412/2011 For the Petitioner : Mr.Sudhir Nandrajog, Sr.Advocate with Mr. Pritpal Nijjar, Mr.Pranavakshar Kapur and Mr.Dhiraj Philip, Advocates

For the Respondent : Mr.Neeraj Kumar Jain, Sr. Advocate with Mr. Anil Kumar, Mr. Rajiv Kapoor, Mr.Avinash Mishra, Advocates with Mr.Santosh Paul, Advocate as amicus curiae

IN RP/1301/2011

For the Petitioner : Mr. Aman Ahluwalia and Mr. Sumit Atri, Advocates

For the Respondent : Mr. Rakesh Sinha and Mr. Pawan Kumar Bansal, Advocates

IN RP/1238/2013 For the Petitioner : Mr. H.L. Tiku, Senior Advocate and Mr.Abhijeet Swarup, Advocate with him.

For the Respondent : NEMO

IN CC/183/2010 For the Complainant : Mr. Kirtiman Singh, Advocate Mr. T. Singhdev, Advocate

For Opp. Party No.1 : Mr. Parveen Kr. Aggarwal, Advocate

For Opp. Party No.2 : NEMO

IN CC/188/2010 For the Complainants : NEMO For the Opposite Party : Mr. Gaurav Malik and Mr.Tarun Banga, Advocates IN CC/240/2010

For the Complainants : Mr.Prabir Basu Mr. S. Banerjee Mr. Sanjoy Kumar Ghosh, Advocates

For the Opposite Party : Mr. Sonjoy Ghose , Advocate

IN CC/254/2010 For the Complainants : NEMO For Opp. Party No.1 : Mr. Sushil Bhashiya, Advocate For Mr.Sunil Goel, Advocate

For Opp. Party No.2 : Mr.Abhinav Hansaria, Advocate

IN CC/58/2011 For the Complainants : NEMO For the Opposite Party : Mr. Vijay Nair, Advocate IN CC/110/2011 For the Complainants : Mr. M Salim, Advocate For the Opposite Party : Mr. Archit Virmani, Advocate

IN CC/241/2011 For the Complainants : NEMO For Opposite Party No.1: Mr. Sushil Bhashiya, Advocate For Mr.Sunil Goel, Advocate

IN CC/273/2011 For the Complainants : NEMO

For Opposite Party No.1 : Mr. Sushil Bhashiya, Advocate For Mr.Sunil Goel, Advocate

IN CC/226/2012

For the Complainants : NEMO

For the Opposite Party : Mr. Sushil Bhashiya, Advocate For Mr.Sunil Goel, Advocate

PRONOUNCED ON: 13.05.2013

O R D E R

ASHOK BHAN, J., PRESIDENT

In this batch of cases (Revision Petitions and the Original Petitions) a two Members Bench has referred the following question of law to a larger Bench for consideration and opinion:- “ Whether the consumer fora constituted under the Consumer Protection Act, 1986 are bound to refer the dispute raised in the complaint, once an application under section 8 of the Arbitration and Conciliation Act, 1996, is filed by the opposite party(ies) seeking reference of the dispute to an Arbitral Tribunal in terms of valid arbitration agreement, despite the provisions of Section 3 of the Consumer Protection Act, 1986. “

2. For the sake of brevity, we do not wish to recapitulate the facts of each case. The facts are taken from Revision Petition No. 412 of 2013.

3. The parties are being referred as per their original status as the Complainant and the Opposite Party.

FACTS:- 4. Complainant booked a flat No.810 with two parking spaces with the Opposite Party DLF Ltd. in its building project at The Aralias, Gurgaon and an Apartment Buyer’s Agreement was executed between the parties on 5.11.04. The apartment was sold by the opposite party to the Complainant on bare shell concept. The interior works were to be done by the Complainant with various facilities to be provided by the Opposite Party on chargeable basis to complete the apartment. By letter dated 24.10.09, Opposite Party cancelled the allotment of apartment as the Complainant neither made the payment demanded by it nor did it undertake the interior work of the apartment. Complainant vide letter dated 05.12.09 requested the Opposite Party for withdrawal of the cancellation letter. Opposite Party offered to restore the allotment of apartment to the complainant subject to payment of Rs.1,09,63,010/- inclusive of holding charges, penalties and restoration charges. Complainant agreed to pay all amounts except restoration charges of Rs.59,00,000/- and accordingly sent a cheque of Rs.50,63,010/- to the Opposite Party which was sent back by it to the Complainant. Complainant, being aggrieved, filed the complaint before the State Commission. 5. During the pendency of the complaint before the State Commission, Opposite Party filed Misc. Application No.688 of 2010 under Section 8 of the Arbitration and Conciliation Act, 1996 for referring the dispute for arbitration under clause 51 of the Apartment Buyer’s Agreement dated 5.11.04. 6. State Commission by its interim order dated 04.01.11 dismissed the M.A.No.688/2010 by observing as under:- “ In the above cited P.Anand Gajapathi Raju’s case (Supra), the applicant fulfilled the pre-requisite conditions of Section 8. Another authoritative pronouncement of the Hon’ble Apex Court in Branch Manager, Magna Leasing and Finance Ltd. and Anr. Vs. Potluri Madhavilata and Anr. (Supra) is also on the same footing wherein the pre-requisite conditions were fulfilled by the applicant for referring the matter to the arbitrator. But in the instant case the applicant/opposite party submitted itself to the jurisdiction of the State Consumer Commission to entertain and decide this complaint when it first applied for setting aside of ex- parte proceedings challenging the orders dated 30.07.10 and 17.8.2010 which were stayed by the Hon’ble National Commission vide order dated 24.09.2010 with respect to carrying out the repair work in the flat by opening the lock of the flat. Thus, keeping in view that the applicant/opposite party sought adjournment on one pretext or the other, sometime for compromise and sometime for setting aside ex-parte order and also filed revision petition before the Hon’ble National Commission against the ex-parte order wherein stay was granted, it should show that the applicant/opposite party is bent upon delaying this case by moving one application and the other. In this view of the matter, there is no force in this application which is totally against the provisions of Section 8 of the Arbitration Act as well as law discussed above. “

7. Opposite Party, being aggrieved, filed the Revision Petition before this Commission. 8. Ld. respective counsels appearing for the parties and the amicus curiae have been heard at length. 9. The main thrust of the submissions of the Ld. Counsel for the Opposite Parties is that the Section 8 of the Arbitration and Conciliation Act, 1996 (hereinafter to be referred as the Arbitration Act of 1996) is peremptory in nature and it is obligatory on the part of the “judicial authority” to refer the parties for arbitration in terms of the arbitration clause in the agreement as the purpose of Section 8 of the Arbitration Act of 1996 is to make the arbitration agreement to be effective. That the mandate of Section 8 of the Arbitration Act of 1996 comes into operation only after an application under sub-section (1) is made by a party before the “judicial authority” before which an action is brought. There may be cases where despite existence of an arbitration agreement, the parties may get their dispute adjudicated from Consumer Fora or other judicial authorities. The reference of the matter to the arbitration is not automatic in case of existence of an arbitration agreement. But once an application under section 8 (1) of the Arbitration Act of 1996 is made by any party, the “judicial authority” has no discretion but to refer the parties to arbitration in view of the use of the word “shall” in the provision. That the bar of Section 8 of the Arbitration Act of 1996 if not strictly enforced it would create an anomalous situation wherein if the matter is not referred for arbitration, as there are counter-claims of the Opposite Parties which the Consumer Fora cannot adjudicate and it would lead to two parallel dispute resolutions over the same/similar issue. That Section 5 of the Arbitration Act of 1996 further confirms the intention of the legislature that the provisions of the Act are intended to have over-riding effect excluding the judicial authorities to intervene in the matters governed by the provisions of the Arbitration Act. That the effect of Section 8 of the Arbitration Act of 1996 is not to non-suit the consumer but to relegate him to a remedy which is already agreed upon. That if the Consumer Fora do not refer the matter to the arbitrator in terms of Section 8, it would result in a peculiar situation where there may be contradictory orders from the Consumer Fora and the Arbitrator. The Arbitrator is not denuded of his jurisdiction simply by virtue of a complaint having been filed before the Consumer Fora. If both proceedings are allowed to proceed simultaneously, the arbitral award would be enforceable as a decree of the court in terms of Section 36 of the Arbitration Act of 1996. 10. It is further contended by the Ld. Counsel for the Opposite Parties that the Section 3 of the Consumer Protection Act, 1986 (hereinafter to be referred as the

“C.P Act”) provides an alternative remedy not in derogation of any provisions of any other law for the time being in force. That Section 3 of the C.P Act does not partially repeal or abrogate any law and, therefore, it can be safely presumed that the Section 3 of the C P Act does not abrogate Section 5 and Section 8 of the Arbitration Act of 1996. But inversely, the aforesaid proposition is not correct because the Section 5 as well as Section 8 of the Arbitration Act of 1996 clearly bars/ouster the jurisdiction of “any judicial authority” which includes the Consumer Fora. In support of the proposition, Ld. Counsels for the Opposite Parties have placed reliance on the Seven Judges Bench’s judgment of the Supreme Court in the case of S.B.P & Co. Vs. Patel Engineering Ltd. & Anr. - (2005) 8 SCC 617 and the following other judgments:- (i) Agri Cold Exims Ltd. Vs. Laxmi Knits & Woven & Ors. – (2007) 3 SCC 686

(ii) Hindustan Petroleum Corporation Ltd. Vs. Pink City Midways Petroleum – (2003) 6 SCC 503

(iii) P. Anand Gajapathi Raju & Ors. Vs. P.V.G. Raju (Dead) & Ors. – (2000) 4 SCC 539

(iv) Rashtriya Ispat Nigam Ltd. & Anr. Vs. Verma Transport Co. – (2006) 7 SCC 275.

(v) Kalpana Kothari Vs. Sudha Yadav ( 2000) 4 SCC 539. (vi) Branch Manager, Magma Leasing and Finance Ltd. & Anr. Vs. Potluri Madhavilata & Anr. ( 2009) 10 SCC 103

11. It is also contended by them that the decision of the Supreme Court in the case of National Seeds Corporation Ltd. Vs. M. Madhusudhan Reddy and Anr. – (2012) 2 SCC 506 does not consider and appreciate the distinction between Section 34 of the Arbitration Act, 1940 and Section 8 of the Arbitration Act of 1996. That it has failed to consider the earlier decisions of the Supreme Court which laid down that Section 8 is mandatory in character and the judicial authorities are bound to refer the matter to arbitration if any application is filed in a timely manner. That the decision is per incuriam and not binding. 12. Ld. Counsels appearing for the Complainants on the other hand contend that the Consumer Fora have jurisdiction to entertain and decide the complaints filed before it despite the existence of an arbitration clause in the agreement executed between the parties to the complaint and it is not open to the opposite party to seek reference of the dispute to the Arbitral Tribunal as the Section 3 of the C P Act provides a remedy in addition to the consentient arbitration which can be enforced under the Arbitration Act or in a civil suit. That the Hon’ble Supreme Court has repeatedly held that the judicial authorities under the C P Act are at liberty to proceed with the matter in accordance with the provisions of the Act and it is not obligatory on their part to refer the parties to arbitration proceedings pursuant to a contract entered into between the parties. That the Parliament was fully and duly aware of the provisions contained in the C.P Act and in particular Section 3 of the Act which provides that provisions of the CP Act are in addition to and not in derogation of the provisions of any other law for the time being in force. 13. It is further contended by them that the Legislature by enacting the C.P Act wanted to create an additional avenue for having speedy redressal of the grievances of the consumer in respect of a consumer dispute either arising from a defect in the goods purchased as per Section 2(1)(f) of the said Act or for deficiency in the service as per Section 2(1)(g) of the said Act and even if it is found that the dispute between the parties is covered by the arbitration agreement and such dispute can be resolved by arbitration as per the said agreement, still a party to such contract cannot be precluded from seeking remedy under the C.P. Act in addition to the Forum available to the parties for resolution of their dispute by way of arbitration. 14. In support of their contentions, Ld. Counsels appearing for the Complainants placed reliance on the following judgments of the Supreme Court:- (i) Lucknow Development Authority v. M.K. Gupta - (1994) 1 SCC 243,

(ii) Fair Air Engineers (P) Ltd. vs. N. K. Modi – (1996) 6 SCC 385

(iii) Skypay Couriers Limited v. Tata Chemicals Limited (2000) 5 SCC 294

(iv) State of Karnataka vs. Vishwabharathi House Building Cooperative Society – (2003) 2 SCC 412

(v) CCI Chambers Cooperative Housing Society Limited Vs. Development Credit Bank Limited – (2003) 7 SCC 233

(vi) Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha (2004) 1 SCC 305,

(v) H.N. Shankara Shastry Vs. Assistant Director of Agriculture, Karnataka- (2004) 6 SCC 230

(vi) Trans Mediterranean Airways Vs. Universal Exports and another- (2011) 10 SCC 316 and in particular the recent judgment of the Supreme Court in National Seeds Corporation Ltd. Vs. M. Madhusudhan Reddy & Anr. – (2012 ) 2 SCC 506wherein the Hon’ble Supreme Court after taking into consideration the provisions of the Section 8 of the Arbitration Act of 1996 and the Section 3 of the C.P. Act has held that the plain language of Section 3 of the C.P. Act makes it clear that the remedy available in that Act is in addition to and not in derogation of the provisions of any other law for the time being in force. Supreme Court has also held that the complaint filed by a consumer before the Consumer Fora would be maintainable despite their being an arbitration clause in the agreement to refer the dispute to the Arbitrator. 15. Mr. Santosh Paul, Advocate, amicus curiae, based on certain foreign and Indian decisions made submissions to advance the proposition that the provisions of Consumer Protection Act, 1986 are in addition and not in derogation of the provisions of Arbitration and Conciliation Act, 1996. His first submission is that the Consumer Protection Act, 1986 has itself carved out a jurisdiction for Redressal Forums to redress the grievance of consumers in regard to specific disputes, i.e., defect in goods, deficiency in certain service(s) rendered by the service provider and adoption of restrictive and or unfair trade practice by certain service provider and, therefore, those matters cannot be referred to Arbitration. In other words, his submission is that no arbitration agreement can be entered by the parties for the settlement of the disputes of the above referred nature. In this regard he has relied upon the following passages from the book titled “Mustil & Boyd Commercial Arbitration, Second Edition” Page No. 149 & 151 & 152 reads as under:- “ In practice therefore, the question has not been whether a particular dispute is capable of settlement by arbitration, but whether it ought to be referred to arbitration or whether it has given rise to an enforceable award. No doubt for this reason, English law has never arrived at a general theory for distinguishing those disputes which may be settled by arbitration from those which may not. The general principle is, we submit, that any dispute or claim concerning legal rights which can be the subject of an enforceable award, is capable of being settled by arbitration. The principle must be understood, however, subject to certain reservations.”

“In Soleimany V Soleimany (1999) QB 785, the Court of Appeal suggested that there may be cases where on grounds of public policy disputes under certain types of contract cannot be referred to arbitration, e.g., trading with the enemy or a partnership in crime.”

16. Mr. Paul then carved out the salient features of Consumer Protection Act, 1986 as under:- “1. The consumer Protection Act, 1986 in its preamble states as follows:- An Act to provide for better protection of the interests of consumers and for that purpose to make provision for the establishment of consumer councils and other authorities for the settlement of consumer’s disputes and for matters connected therewith.

2. The Consumer Protection Act, 1986 comes out “wrongs” for which an elaborate redressal mechanism has been set up. The wrongs are as follows:- a. Deficiency of Notice (Section 2(f)) b. Defect (Section 2(g)) c. Restrictive Trade Practice 2 (nnn) d. Unfair Trade Practice 2 (r)

17. It is the submission of the amicus curiae that for the redressal of the wrongs, an elaborate redressal mechanism has been set up at the District, State and National level to deal with the matters relating to defect in goods within the meaning of section 2 (f), deficiency in service under section 2(g), restrictive trade practice section 2(nnn) and unfair trade practice section 2(r) of the Act. That by establishing the consumer disputes redressal fora, the legislature has provided a special remedy for the redressal of the said wrongs which is in addition to the remedy already provided under the Code of Civil Procedure and the MRTP Act. According to him, the remedy provided under the Consumer Protection Act, 1986 is a special remedy with the object of redressal of the grievance of the affected consumers in an expeditious and non-expensive manner. That by the enacting the Arbitration and Conciliation Act, 1996, the legislature has not taken away the said remedy. 18. Preamble to the C.P. Act shows that this legislation is meant to provide for better protection of the interests of consumers and for that purpose to make provision for establishment of consumer councils and other authorities for the settlement of consumer disputes and for matters connected therewith. The salient features of the Consumer Protection Bill were to promote and protect the rights of consumers such as :- (a) the right to be protected against marketing of goods which are hazardous to life and property;

(b) the right to be informed about the quality, quantity, potency, purity, standard and price of goods to protect the consumer against unfair trade practices;

(c) the right to be assured, wherever possible, access to an authority of goods at competitive prices.

(d) the right to be heard and to be assured that consumers interests will receive due consideration at appropriate forums;

(e) the right to seek Redressal against unfair trade practices or unscrupulous exploitation of consumers, and

(f) right to consumer education 18. Section 2 of the C.P. Act contains the definition of various terms. Clause (d) and (f) read as under:- “2 (d) ‘consumer’ means any person who,—

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or (ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first-mentioned person but does not include a person who avails of such services for any commercial purpose;

Explanation.—For the purposes of sub-clause (i), ‘commercial purpose’ does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment; (The explanation was substituted w.e.f. 15.3.2003 by Consumer Protection (Amendment) Act 62, 2003)

(f) ‘defect’ means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or under any contract, express or implied, or as is claimed by the trader in any manner whatsoever in relation to any goods

19. Section 3 declares that the provisions of the C P Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. Section 9 provides for establishment of the Consumer Forums at the District, State and National level. Section 11 relates to jurisdiction of the District Forum. Section 12 prescribed the manner in which the complaint can be filed before the District Forum and the procedure required to be followed for entertaining the same.

20. The scope and reach of the C.P. Act has been considered by the Hon’ble Supreme Court in following judgments:- (i) Lucknow Development Authority v. M.K. Gupta - (1994) 1 SCC 243,

(ii) Fair Air Engineers (P) Ltd. vs. N. K. Modi – (1996) 6 SCC 385

(iii) Skypay Couriers Limited v. Tata Chemicals Limited (2000) 5 SCC 294

(iv) State of Karnataka vs. Vishwabharathi House Building Cooperative Society – (2003) 2 SCC 412

(v) CCI Chambers Cooperative Housing Society Limited Vs. Development Credit Bank Limited – (2003) 7 SCC 233

(vi) Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha (2004) 1 SCC 305,

(v) H.N. Shankara Shastry Vs. Assistant Director of Agriculture, Karnataka- (2004) 6 SCC 230

21. In M Lalitha’s case (supra) two judges Bench of the Supreme Court noticed the background, the object and reasons and the purpose for which the C.P. Act was enacted. After referring to its earlier judgments in M.K. Gupta’s case (supra) and N.K. Modi’s case (supra), the Hon’ble Supreme Court observed as under:- “The preamble of the Act declares that it is an Act to provide for better protection of the interest of consumers and for that purpose to make provision for the establishment of Consumer Councils and other authorities for the settlement of consumer disputes and matters connected therewith. In Section 3 of the Act in clear and unambiguous terms it is stated that the provisions of the 1986 Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. From the Statement of Objects and Reasons and the scheme of the 1986 Act, it is apparent that the main objective of the Act is to provide for better protection of the interest of the consumer and for that purpose to provide for better redressal, mechanism through which cheaper, easier, expeditious and effective redressal is made available to consumers. To serve the purpose of the Act, various quasi-judicial forums are set up at the district, State and national level with wide range of powers vested in them. These quasi-judicial forums, observing the principles of natural justice, are empowered to give relief of a specific nature and to award, wherever appropriate, compensation to the consumers and to impose penalties for non-compliance with their orders.”

22. In Kishore Lal Vs. Chairman, Employees’ State Insurance Corporation (2007) 4 SCC 579, the Supreme Court held that the jurisdiction of the Consumer Fora should not be curtailed unless there is an express provision prohibiting the Consumer Forum to take up the matter which falls within the jurisdiction of the civil court or any other forum as established under some enactment. The Court went to the extent of saying that if two different fora have jurisdiction to entertain the dispute in regard to the same subject, the jurisdiction of the Consumer Forum would not be barred and the power of the Consumer Forum to adjudicate upon the dispute could not be negated. The relevant observations read as under:-

“The trend of the decisions of this Court is that the jurisdiction of the Consumer Forum should not and would not be curtailed unless there is an express provision prohibiting the Consumer Forum to take up the matter which falls within the jurisdiction of civil court or any other forum as established under some enactment. The Court had gone to the extent of saying that if two different fora have jurisdiction to entertain the dispute in regard to the same subject, the jurisdiction of the Consumer Forum would not be barred and the power of the Consumer Forum to adjudicate upon the dispute could not be negated.”

23. The definition of ‘consumer’ contained in Section 2 (d) of the C.P. Act which is reproduced in the earlier part of this order is very wide. Sub Clause (i) of the definition takes within its fold any person who buys any goods for a consideration paid or promoted or partly paid and partly promised, or under any system of deferred payment. It also includes any person who uses the goods though he may not be buyer thereof provided that such use is with the approval of the buyer. The last part of the definition contained in Section 2 (d) (i) excludes a person from the definition of ‘consumer’ who obtains the goods for resale or for any commercial purpose. By virtue of the explanation which was added by Amendment Act 62 of 2002, it was clarified that the expression ‘commercial purpose’ used in sub clause (i) does not include use by a consumer of goods bought and used by him for the purpose of earning his livelihood by means of self-employment. 24. We will now notice some of the provisions of the Arbitration and Conciliation Act, 1996. Section 7 of the Arbitration Act of 1996 which defines Arbitration Agreement reads as under:- “7. Arbitration agreement. (1) In this Part, "arbitration agreement" means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.

(2) An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.

(3) An arbitration agreement shall be in writing.

(4) An arbitration agreement is in writing if it is contained in:-

(a) a document signed by the parties;

(b) an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement; or

(c) an exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other. (5) The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration clause part of the contract.”

25. Section 8 of the said Act reads as under:- “ 8. Power to refer parties to arbitration where there is an arbitration agreement.- (1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration. (2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof. (3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.” 26. Section 5 of the said Act reads as under:-

5. Extent of judicial intervention Notwithstanding anything contained in any other law for the time being in force, in matters governed by this Part, no judicial authority shall intervene except where so provided in this Part.

27. Section 8 of the Arbitration Act of 1996 is analogous to Section 34 of 1940 Act which reads as under:- “ 34. Power of Court, where arbitration agreement is ordered not to apply to a particular difference, to order that a provision making an award a condition precedent to an action shall not apply to such difference: Where it is provided (whether in the arbitration agreement or otherwise) that an award under an arbitration agreement shall be a condition precedent to the bringing of an action with respect to any matter to which the agreement applies, the Court, if it orders (whether under this Act or any other law) that the agreement shall cease to have effect as regards any particular difference, may further order that the said provision shall also cease to have effect as regards that difference.” 28. A comparative study of the two sections will bring out as under:-

Section – 8 Arbitration and Section 34 Arbitration Act, 1940 Conciliation Act, 1996

(1) There is an arbitration agreement. (1) There is an arbitration agreement.

(2) A party to the agreement brings (2) Any Party commences any legal an action in the court against the proceedings against any other party to other party. the agreement.

(3) Subject matter of the action is the (3) Claiming in respect of any matter same as the subject matter of the against any other party to the arbitration agreement; agreement.

(4) The other party moves the court (4) The other party applies to stay the for referring the parties to arbitration proceedings at any time before the filing before it submits his first statement of the Written statement or taking any on the substance of the dispute. other steps in the proceedings.

29. In N.K. Modi’s case (supra), the 2-Judge Bench of the Supreme Court after taking into consideration the provisions of the C.P Act, the Arbitration Act of 1996 and Arbitration Act, 1940 held as under:

“The provisions of the Act are to be construed widely to give effect to the object and purpose of the Act. It is seen that Section 3 envisages that the provisions of the Act are in addition to and are not in derogation of any other law in force. It is true, as rightly contended by Shri Suri, that the words “in derogation of the provisions of any other law for the time being in force” would be given proper meaning and effect and if the complaint is not stayed and the parties are not relegated to the arbitration, the Act purports to operate in derogation of the provisions of the Arbitration Act. Prima facie, the contention appears to be plausible but on construction and conspectus of the provisions of the Act we think that the contention is not well founded. Parliament is aware of the provisions of the Arbitration Act and the Contract Act, 1872 and the consequential remedy available under Section 9 of the Code of Civil Procedure, i.e., to avail of right of civil action in a competent court of civil jurisdiction. Nonetheless, the Act provides the additional remedy.

It would, therefore, be clear that the legislature intended to provide a remedy in addition to the consentient arbitration which could be enforced under the Arbitration Act or the civil action in a suit under the provisions of the Code of Civil Procedure. Thereby, as seen, Section 34 of the Act does not confer an automatic right nor create an automatic embargo on the exercise of the power by the judicial authority under the Act. It is a matter of discretion. Considered from this perspective, we hold that though the District Forum, State Commission and National Commission are judicial authorities, for the purpose of Section 34 of the Arbitration Act, in view of the object of the Act and by operation of Section 3 thereof, we are of the considered view that it would be appropriate that these forums created under the Act are at liberty to proceed with the matters in accordance with the provisions of the Act rather than relegating the parties to an arbitration proceedings pursuant to a contract entered into between the parties. The reason is that the Act intends to relieve the consumers of the cumbersome arbitration proceedings or civil action unless the forums on their own and on the peculiar facts and circumstances of a particular case, come to the conclusion that the appropriate forum for adjudication of the disputes would be otherwise those given in the Act.”

(emphasis supplied) 30. In Skypay Couriers Ltd.’s case (supra) the Supreme Court again in the context of Arbitration Act of 1940 observed as under :- “ Even if there exists an arbitration clause in an agreement and a complaint is made by the consumer, in relation to a certain deficiency of service, then the existence of an arbitration clause will not be a bar to the entertainment of the complaint by the Redressal Agency, constituted under the Consumer Protection Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force. ”

31. In Trans Mediterranean’s case (supra) , the Hon’ble Supreme Court observed as under :-

“ In our view, the protection provided under the CP Act to consumers is in addition to the remedies available under any other statute. It does not extinguish the remedies under another statute but provides an additional or alternative remedy.”

32. In N.K. Modi’s case (supra) and Skypay Courier’s Case (supra), the Hon’ble Supreme Court in the context of the provisions of the C.P. Act and in particular Section 3 of the Act and Arbitration Act of 1940 has held that the Consumer Fora created under the C.P. Act are at liberty to 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. Ld. Counsel appearing for the Opposite Parties submitted before us that these judgments would not be applicable as they are in the context of the Arbitration Act of 1940. That the Arbitration Act of 1996 has brought out fundamental changes and in view of the Arbitration Act of 1996, it is mandatory on the part of the Judicial Authorities to refer the parties to the arbitration. That the mandate of Section 8 of Arbitration Act of 1996 would be defeated if the matter is not referred to arbitration in the cases where the parties have agreed to refer the dispute to the Arbitration. We do not find any substance in this submission as well. Hon’ble Supreme Court in Madhusudhan Reddy’s case (supra) after posing the following questions for its consideration in para 31 of the judgment:- “ The Ld. Counsel relied upon Section 8 of the Arbitration and Conciliation Act, 1996 and argued that in view of the arbitration clause contained in the agreements entered between the appellant and the growers, the latter could have applied for arbitration and Consumer Forums should have non-suited them in view of Section 8 of the Arbitration and Conciliation Act, 1996.”

held that the complaint filed under the C.P. Act would be maintainable and the consumer cannot be denied the relief by invoking the jurisdiction of Section 8 of the Arbitration Act of 1986. That Section 3 of the C.P. Act makes it clear that the remedy available in that Act is in addition and not in derogation of the provisions of any other law for the time being in force. The relevant observations of the Supreme Court contained in para 66 of this judgment read as under:- “The remedy of arbitration is not the only remedy available to a grower. Rather, it is an optional remedy. He can either seek reference to an arbitrator or file a complaint under the Consumer Act. If the grower opts for the remedy of arbitration, then it may be possible to say that he cannot, subsequently, file complaint under the Consumer Act. However, if he chooses to file a complaint in the first instance before the competent Consumer Forum, then he cannot be denied relief by invoking Section 8 of the Arbitration and Conciliation Act, 1996 Act. Moreover, the plain language of Section 3 of the Consumer Act makes it clear that the remedy available in that Act is in addition to and not in derogation of the provisions of any other law for the time being in force.”

33. Faced with this, Ld. Counsel appearing for the Opposite Parties contended that in this case, the Hon’ble Supreme Court did not take into consideration the decision of the Seven Judges Bench in the S.B.P & Co.’s case. We do not find substance in this submission as well. In Madhusudhan Reddy’s case (Supra) , Supreme Court after taking into consideration the background, objectives and reasons behind the enactment of C.P. Act, juxtapositioning the provisions of the C.P. Act and the Arbitration Act of 1996 (Section 3 of the C.P. Act and Section 8 of the Arbitration Act of 1996) held that the complaint filed by a consumer under the C.P. Act would be maintainable and the relief cannot be denied by invoking the jurisdiction of section 8 of the Arbitration Act of 1996. We are bound to follow the law laid down by the Supreme Court. The judgment is binding precedent.

By establishing the Consumer Disputes Redressal Forums, the Legislature has provided special remedy for the redressal of the grievances of “small consumers” who buy the goods or avail of services for their personal purpose. Persons who have bought the goods or availed of services for commercial purposes have been specifically excluded from the definition of ‘consumer’ except where the goods have been bought or services availed of by a small consumer for earning his livelihood by way of self- employment. Remedy provided under the C.P. Act is a special remedy with the objective of redressal of the grievances of the affected consumers in an expeditious and non-expensive manner. If the small consumers are relegated to the Alternative Dispute Resolution (ADR) mechanism of arbitration, the remedy provided under the C.P. Act would become illusionary. It would be neither expeditious nor in-expensive. It would defeat the very purpose of enactment of the C.P. Act.

34. Another aspect in relation to the consumer disputes which has to be taken note of is that most of the complainants /consumers sign the agreement containing an arbitration clause under duress(instance is taken from Builder’s agreement) because the other party which is in a dominating position insists for it, else they would not enter into builders’ agreement. In most of the cases, the builder who is in a dominating position reserves the right to appoint Sole Arbitrator to himself and the Arbitrator so appointed in most of the cases is the officer of the builder from whom it is almost impossible to expect an impartial and fair award. If the builder is allowed to have resort to the arbitration agreement contained in the Builder’s agreement, going by the prevalent practice and little experience we have in the matters, the consumer would never be able to redress his genuine grievance. Legislature by providing the additional remedy under Section 3 of the C.P. Act has tried to take care of such a situation to redress the grievances of the small consumers.

34. Respectfully following the view taken by the Hon’ble Supreme Court in catena of judgments and in particular in Madhusudhan Reddy’s case (supra), the question referred is answered in negative, i.e. in favour of the Complainants and against the Opposite Parties. It is held that the Consumer Fora constituted under the C.P Act are not bound to refer the dispute raised in the complaint on an application filed u/s 8 of the Arbitration Act of 1996 seeking reference of the dispute to an Arbitral Tribunal in terms of valid arbitration clause in the agreement entered into between the parties.

35. Revision Petition are remitted back to the State Commission to decide the same on merits in accordance with law. Original Petitions be listed before the respective Benches of this Commission as per current roaster for disposal in due course.

36. Before parting with the matter, we would like to place on record our deep sense of appreciation for the assistance rendered by the amicus, Mr. Santosh Paul,

Advocate. We direct the Registry to disburse a sum of Rs.25,000/- to Mr. Paul as out of pocket expenses from the NCDRC Legal Aid Account. …......

(ASHOK BHAN J.) PRESIDENT ...... (VINEETA RAI) MEMBER ...... (S.M. KANTIKAR) MEMBER YD/* NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

FIRST APPEAL NO. 254 OF 2013

(Against the order dated 14.02.2013 in S.C. Case No.CC/94/2010 of the State Commission, West Bengal)

M/s. Vivekanand Construction Company At Phase -4, Block-6, 493/C/A, G.T. Road (South), Howrah -2 West Bengal

……….Appellant

Versus

1. Suraj Ratan Mundra At Flat No.303 C, Block- Back (rare) At Devangan Apartment, 176, Bidhan Sarani, Kolkata- 700006

2. Kailash Undra At Flat No.303 C, Block-Back (rare) At Devangan Apartment 176, Bidhan Sarani, Kolkata- 700006.

...... Respondents

BEFORE

HON’BLE MR. VINAY KUMAR, PRESIDING MEMBER

For the Appellant : Mr.Dipak Kr. Jena & Mr. Yatharth Nautiyal Advocates

PRONOUNCED ON: 17 May 2013

PER MR.VINAY KUMAR, PRESIDING MEMBER

This appeal is filed against the order of West Bengal State Consumer Disputes

Redressal Commission in CC/94/2010 in which complaint of the present respondents has been allowed.

2. The case of the Complainants is that they have purchased a flat from the Appellant /OP and were put in possession of the same in 1999. But, despite payment of full agreed price and repeated reminders, the OP did not register the sale deed in their favour, until the filing the complaint on 13.12.2010. In this background the State Commission, in its order of 14.2.2013, has directed the appellant/OP to execute and register the deed of conveyance within 45 days. The Commission has also awarded compensation of Rs.3 lakhs.

3. De hors the claim of the complainants, the plea of the Appellant /OP before the State Commission was that-

“the opp. Party completed the flat and issued possession letter on 21.04.99 and requested the opp. Party for registration of the documents but the petitioner was not interested to register the documents for the purpose of squeezing money from the Opp. Party. It is submitted that the Opp. Party requested the petitioner for making arrangement for registration and paying cost of registration including stamp duty and other requires so that the Opp. Party can execute the documents before the Calcutta Registration office but the petitioner did not pay any heed to it nor given any response.” The State Commission did not accept this plea and held that- “There is practically no tangible answer on the part of the OP as to what caused such abnormal delay in execution and registration of the deed in question, which, in our opinion, tantamounts to deficiency in service”

4. We have carefully perused the records of the appeal and heard Mr. Dipak Kumar Jena, Advocate on behalf of the appellant.

5. As is evident from the record, the flat had not been registered in the name of the

Complainants for almost 10 years from the date of possession till 13.12.2012, when the jurisdiction of the State Commission was invoked. The observation of the State Commission that there was no answer on the part of the OP as to what caused this abnormal delay in execution of the deed of conveyance was put to the appellant counsel. Learned counsel admitted that no documentary evidence in this behalf had been placed before the State Commission. Only oral submissions had been made to the effect that the efforts made by the Appellant/OP to get the sale deed registered were frustrated by non-cooperation of the respondent/Complainant. It is therefore, clear that no evidence of any value was adduced before the State Commission in support this contention.

6. The appeal petition, as well as the arguments of the counsel for the appellant, have both laid considerable stress on the fact that the consumer complaint was filed nearly 10 years after the admitted date of possession of the flat. It is argued that if the cause of action arose on 21.4.1999, i.e. the date of possession, the complaint would become inadmissible on the ground of delay. On this point, the case of the Complaints, as seen from para 13 of the complaint before the State Commission was that:-

“That the cause of action of this case arose on 21.04.1999 being the date of giving possession of the flat in question by the opposite party and further on 16.05.2008 being the date of issuance of first legal notice through S.G. Muskara and then on 17,09,2010 being the date of last legal notice through Barun Prasad, advocate and denial to execute the deed of conveyance of the flat by the opposite party the same is continuing till date.”

The only response to this in the pleadings of the appellant/OP before the State Commission was a bland denial that the cause of action arose on 21.4.1999 and that it arose again on subsequent dates of legal notices.

7. Learned counsel for the appellant has sought to rely upon the decision in Haryana Urban Development Authority Vs. B.K., Sood, (2006) 1 SCC 164. In this matter, the complaint before the State Commission was filed 10 years after taking possession of the bhattis and 8 years after the cause for alleged damage had commenced. But, there was not even a prayer to condone the delay. Hon’ble Supreme Court observed that the National Commission had proceeded on an incorrect factual basis that the bhattis had been removed during the pendency of the appeal before it. This finding was held to be contrary to the records as the offending bhattis had already been removed, three years before the consumer complaint was filed.

8. On comparison, facts of the present case are found to be very different. The case of the Complainants, as already observed, was that the cause of action began with the possession of the flat in 1999 and continued till the filing of the complaint, due to non- registration of the conveyance deed for the same. Therefore, in my view the decision relied upon by the appellant will not come to his rescue. Moreover, the plea of continuing cause of action was not challenged before the State Commission.

9. In Lata Construction and others Vs. Dr.Rameshchandra Ramniklal Shah and another, (2000) 1 SCC 586, the question of ‘continuing cause of action’ arose directly for consideration before the Supreme Court of India. The case of the Complainant was that under a written agreement of 27.1.1987 the builder-developer had promised to provide a flat but had failed to do so. This agreement contemplated that Lata Construction would construct and hand over a flat on the ground floor. This was not done. However, the two sides entered into a fresh agreement on 23.2.1991 in which the builder agreed to pay the Complainant Rs.9.51 lakhs in lieu of the flat. Hon’ble Suprme Court held that:-

“4. A perusal of the agreement dated 23-2-1991 would show that it was specifically stipulated therein that the rights under the agreement dated 27- 1-1987 would remain unaffected. It was for this reason that in the claim petition filed before the Commission, it was clearly mentioned that their rights under the agreement dated 27-1-1987 as also those under the agreement dated 23-2-1991 may be enforced. It was also specifically mentioned in the second agreement that the first agreement of 1987 would be treated as terminated only on fully payment of the stipulated amount of Rs.9,51,000 to the respondents. Since the rights under the agreement of 1987 had not been given up and the appellants were constantly under an obligation to provide a flat to the respondents and deliver possession thereof to them, the Commission rightly treated “cause of action” to be a “continuing cause of action” and came to the right conclusion that the claim was not beyond time.”

10. The law laid down above on continuing cause if action, applies equally to the present case. The sale of the flat to the respondent/ complainant, receipt of the agreed price by the vendor/appellant and physical delivery of the flat by the vendor/OP to the purchaser/Complainant, are facts established on the record. While the appellant has failed to prove that the respondent was responsible for the delay, non execution of the conveyance deed remains an admitted fact. More than anyone else, the appellant, being a construction company, should know that sale of a flat is completed with registration of the sale deed and not with mere transfer of physical possession. Clearly, the cause of action, which began with delivery of physical possession, continues till the deed of conveyance is registered. Therefore, the question of limitation does not arise.

11. In the above background, I find no substance in the grounds of appeal against the impugned order. The appeal is therefore dismissed and the order of the West Bengal State Consumer Disputes Redressal Commission in Consumer Complaint No CC/94/2010 is confirmed. No orders as to costs.

.……………Sd/-…………… (VINAY KUMAR) PRESIDING MEMBER s./- NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 242 OF 2013 With (I. A. No. 446 of 2013 for Condonation of Delay) ( I. A. No. 447 of 2013 for Stay) (From order dated 25.09.2012 in Appeal No. 1080 of 2011 of Andhra Pradesh State Consumer Disputes Redresdsal Commission, Hyderabad)

M/s Padmaja Construction, Rep. by its Proprietor, Sri K. Yedukondalu S/o Venkata Ratnam, Aged about 49 years, R/o Flat No. 501, Sri Ventakeswara Enclave, Yellareddyguda, Hyd. District, Andhra Pradesh ………Petitioner

Versus 1. Smt. P. Annapurna, W/o Late P. Veerfappa, Aged about 54 years, Occ: House Hold, (died on 12.07.2011) by L.Rs.

1A. Sri P. Buchi Raju S/o late P. Veerappa, Aged 38 years, Occ: Service.

1B. Sri P. Veeresham, S/o lage P. Veerappa Aged about 33 years, Occ: Service.

1C. Sri P. Vishwanath S/o lage Verappa, Aged 24 years, Occ: Student. All Residing at H. No. 7-1-205/5, Ameerpet, Hyderabad, Andhra Pradesh …… Respondents

BEFORE:

HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER HON’BLE MRS. REKHA GUPTA, MEMBER

For the Petitioner : Mr. V. Sridhar Reddy, Advocate

Pronounced on: 17 th May, 2013 ORDER

PER MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER

There is an application seeking condonation of delay filed by the petitioner. As delay is of only 9 days, same stands condoned.

2 Petitioner/Opposite Party being aggrieved by order dated 25.9.2012, passed by Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad (for short, ‘State Commission’) has filed present revision petition.

3. Brief facts are that respondents/complainants entered into a development agreement with petitioner on 03.05.2007 to develop and construct residential flats and hand over possession. Petitioner agreed to construct and give flat of 1250 Sq. Ft. in second or third floor within 24 months with a grace period of four months. The petitioner completed the construction in December,2009 and the advance of Rs.2,00,000/- taken from the respondents was also returned on 12.12.2009 but did not handover the property due to which respondents are sustaining loss of Rs.25,000/- per month till date.

On that, respondents gave legal notice claiming possession, Rs.5,00,000/- towards loss of rents from October,2008 to May, 2010, Rs. 2,00,000/- towards mental agony.

Petitioner gave a reply stating that it was ready to deliver the flat provided respondents paid Rs.61,000/- towards electrical charges and municipal taxes paid by it. Alleging that all this amounts to deficiency in service, respondents claimed possession of the property besides Rs.7,00,000/- towards damages for mental agony with interest at 24% p.a. and costs.

4. Notice of complaint was issued to the petitioner for 24.11.2010, which was received back with the Postal remarks “Not claimed” and posted the matter for respondents evidence. Thereafter, respondents filed an application for amendment of the complaint.

Notice of this application was issued to the petitioner. On behalf of petitioner,

Mr.D.Krishna Prasad, Advocate appeared and filed his Vakalatnama and stating that he did not propose to file counter and will argue the matter on the basis of allegations made in the complaint. Thereafter, application for amendment of the complaint was allowed by the District Forum on 28.2.2011 and matter was adjourned to 14.3.2011. On that date, amended copy of the complaint was filed and matter was adjourned to

6.4.2011 for filing of counter on behalf of the petitioner. On that date, petitioner did not file the counter and sought time. Accordingly, matter was adjourned to 18.4.2011 for filing of counter, subject to payment of Rs.200/- as cost. On 18.4.2011, again counter was not filed and cost not paid and there was no representation on behalf of the petitioner before the District Forum and accordingly, matter was posted on 6.5.2011 for respondents’ evidence. Thus, petitioner did not file any counter/reply to the complaint before the District Forum nor did it pay the adjournment cost.

5. Thereafter, District Forum, vide order dated 21.07.2011 partly allowed the complaint of the respondents and passed the following directions; “ (1) That complaint is partly allowed directing the Opposite Party to deliver the flat admeasuring 1,250 sq. ft. in the 2nd floor and in case if it is not possible for the Opposite Party to handover the flat in 2nd floor, it is directed to handover the flat in 3rd floor without demanding any amount from the Complainants. (2) The Opposite Party is directed to pay an amount of Rs. 9,000/- per month from the month of December, 2009, till the flat in the 2nd or 3rd floor is delivered. (3) The Complainants are entitled to costs of Rs.2,000/from the Opposite Party. This order is to be complied within four weeks from the date of receipt of this order”.

6. Since District Forum disallowed compensation towards mental agony and rent at Rs.25,000/- per month instead of Rs.9,000/- per month along with interest @ 24% p.a. from December, 2009 till the date of possession, respondents filed appeal before the State Commission.

7. State Commission, vide impugned order disposed of the appeal with direction to the petitioner ; “ It is not known as to why the complainants having succeeded in the complaint, while preferring appeal did not choose to file additional documents for claiming rent at a higher rate. In the first place it could have taken possession and recover whatever amount that was awarded by the District Forum. therefore, it cannot be said that the opposite party was at fault. Absolutely, we do not see any merits in the appeal except a direction to the opposite party to deliver possession of the flat in third floor immediately, together with costs that were awarded by the District Forum. In the result, this appeal is disposed of with a direction to the opposite party to hand over possession of the flat immediately, and pay rent as directed by the District Forum together with costs within four weeks from the date of receipt of this order.”

8. Hence, this revision petition.

9. We have heard learned counsel for the petitioner and gone through the record.

10. It is contended by learned counsel for the petitioner that due to the fault of the respondents in not paying the extra cost for extra area of the flat and Municipal Tax, the flat is lying vacant and as such petitioner is not liable to pay any rent to the respondents as awarded by the fora below. Other contention is that petitioner cannot be made liable to deliver possession of the flat unless respondents pay extra cost of Rs.51,000/- incurred by it on the construction of the extra area of flat and Rs.5,000/- towards the

Municipal tax paid by the petitioner.

11. District Forum, while allowing the complaint held ; “ The Opposite Party admitted in his reply notice Ex.A10 that the flats were constructed long back and not in the month of December, 2009 as contended by the complainant and it was ready to deliver the flat in the 3rd floor as per the terms of Ex.A1. If that be the case of the Opposite Party, it is for the Opposite Party to show as to why it did not inform the complainants in writing that it was ready and willing to deliver the flat as per the terms of Ex.A1 and as to why it was kept quite till the date of receipt of original of Ex.A5 notice, dated 22.06.2010. No reasonable or at least possible explanation is forthcoming to prove that aspect. In the facts and circumstances of the case and also after going through the documents relied upon by the Complainants, it is to be held that the non delivery of the flat to the complainants as the terms of the Ex.A1 Development Agreement after completion of the construction of the flats in the site belongs a deficiency of service on the part of the Opposite Party”. District Forum further held ; “ Since the Opposite Party failed to deliver the flat either in the 2nd floor or 3rd floor as per the terms of the Ex. A1 after completion of the construction of the flats even before the month of December, 2009, it is liable to pay rent @ 9,000/- per month form the month of December, 2009 to till the date of delivery of the flat, either in the 2nd floor or 3rd floor. The Opposite Party shall not demand Rs.61,000/- as claimed in the reply notice Ex. A10 for the reason that it failed to deliver the flat soon after the completion of the construction of the flats. Because of non delivery of the flats to the Complainants as per the terms of the Ex.A1 Development Agreement, the complainants are subjected to harassment and mental agony besides being sustained monetary loss”.

12. As apparent from the record, petitioner did not file any written statement before the

District Forum nor it paid the adjournment cost and as such matter was decided by the

District Forum in the absence of the petitioner. Thus, petitioner has no defence in this case.

13. It is also an admitted fact that petitioner never challenged the order passed by the

District Forum. Hence, order of District Forum has become final.

14. Further, as per Development Agreement petitioner, has to construct and deliver the possession of the flat to the respondents after due construction. Till date, petitioner has not handed over possession to the respondents. This plea taken by the petitioner in the present revision that respondents have to pay extra cost for the extra area constructed by the petitioner, cannot be taken into consideration since petitioner has no such defence before the

District Forum nor same has been proved by the petitioner.

15. Under these circumstances, we do not find any ambiguity, infirmity or illegality in the impugned order. The present petition has no merits at all and same is hereby dismissed with cost of Rs.10,000/-.(Rupees Ten Thousand only) 16. Petitioner is directed to deposit the cost by way of demand draft in the name of

‘Consumer Welfare Fund’ as per Rule 10A of Consumer Protection Rules,1987, within eight weeks from today. In case, petitioner fails to deposit the cost within prescribed period, then it shall be liable to pay interest @ 9% p.a. till its realization.

17. List on 19.07.2013 for compliance. ……..……………………J

(V.B. GUPTA)

( PRESIDING MEMBER)

……………………………

(REKHA GUPTA)

MEMBER

SSB TION TO FILE C/C & EARLY HEARING)

Ansal Housing & Construction Ltd. 15, UGF, Indraprakash, 21, Barakhamba Road, New Delhi – 110001.

... Petitioner

Versus

Indian Machinery Company, 1508, Farash Khana, G.B. Road, Delhi – 110006

… Respondent(s)

BEFORE

PRESIDING MEMBER

APPEARED AT THE TIME OF ARGUMENTS

For the Petitioner(s) Mr. Kapil Kher, Advocate

Mr. Siddhartha Jain, Advocate

For the Respondent(s) Md. Ehraz Zafar, Advocate as Caveator

PRONOUNCED ON : 24 th MAY 2013 O R D E R

PER DR. B.C. GUPTA, MEMBER

This revision petition has been filed under section 21(b) of the Consumer Protection

Act, 1986 against the impugned order dated 22.03.2013 passed by the Delhi State

Consumer Disputes Redressal Commission (for short ‘the State Commission’) in FA No.

800/2009, “M/s. Ansal Housing & Construction Ltd. versus M/s. Indian Machinery Co.” vide which while, dismissing the appeal filed by the petitioner, the order dated 1.10.2009 passed by the District Forum in consumer complaint no. 967/2007 was upheld.

2. Brief facts of the case are that the complainant/respondent purchased a plot measuring 359 sq. yard bearing no. C/C-287 in the housing scheme of Uttar Pradesh

State Industrial Development Corporation (UPSIDC) at Tronica City, Ghaziabad from

M/s. Jyoti Estates @Rs.2300/- per sq. yard which was transferred in the name of the complainant on 10.2.2001. The complainant made a total payment of Rs.4,78,778/- in six instalments to the petitioner/Opposite Party upto 22.04.2002. The case of the complainant is that they paid security, maintenance charges of the said plot regularly, but the said area was not developed and the market value of the land in question went down to less than Rs.1,000/- per sq. yard. The complainant had been visiting the office of the OP to enquire about the status of the plot, but they were told in May 2006 that the said plot had been cancelled. The complainant maintains that they were not given any notice regarding the cancellation, although they had made the payment of about 58% of the basic cost of the plot. The cancellation amount of Rs.3,96,683/- alleged to have been sent by the OP was never received by them. The complainant/respondent, therefore, filed consumer complaint before the District Forum and vide order dated

06.08.2009, the District Forum ordered the restoration of plot no. C/C-287 to the complainant and directed the OP to deliver the possession to the complainant on depositing the balance amount and without forfeiture of any amount. A sum of

Rs.50,000/- as compensation for mental agony and harassment and Rs.10,000/- as costs was also allowed to the complainant. An appeal was filed by the petitioner/OP against the order of the District Forum before the State Commission, but the same was ordered to be dismissed. It is against this order that the present revision petition has been filed. The complainant/respondent has also filed caveat petition along with an affidavit and the counsel for caveator was also heard at the time of admission hearing.

3. It has been stated in the complaint filed by the respondent dated 3.10.2007 that they had earlier filed a complaint before the District Forum which was ordered to be dismissed on 29.08.2007 because of non-appearance of the complainant. The complainant had noted the date of hearing as 29.09.2007 in place of 29.08.2007. The complainant then decided to file a new complaint with similar facts and circumstances and claims requesting that earlier complaint no. 307/2007 should be considered a part and parcel of the new complaint.

4. At the time of hearing before us, learned counsel for the petitioner has drawn our attention to the ‘list of dates and events’ filed along with the revision petition saying that the plot was first allotted to “M/s. Jyoti Estates” on 05.02.2001 and it was transferred in favour of respondent on 10.02.2001. The possession of the plot was offered on

1.3.2003 and demand raised for payment of outstanding amount by the respondent to the petitioner. Reminders were sent on 15.06.2004 and 19.07.2004 by the petitioner to the respondent for payment of the outstanding amount. On their failure to make the payment, the allotment was cancelled on 06.04.2005 and a refund cheque was issued on 26.11.2005 after forfeiting 20% of the deposited amount. The legal notice sent by the respondent was duly replied on 26.08.2006. The learned counsel invited our attention to statement of account attached with the petition which indicates that a total amount of Rs.4,74,778/- had been received from the respondent and the balance amount on account of the cost of the plot, lease rent, stamp duty, etc. had been listed in this document. All these amounts were to be paid by 31.03.2003. A reminder was sent for making the said payment vide letter dated 15.06.2004 and again vide letter dated

19.07.2004 and copies of these letters have been placed on record. Vide letter dated

06.04.2005, the allotment of the said property was cancelled and a copy of the said letter is on record. The learned counsel stated that the second complaint filed by the respondent was not maintainable and after the cancellation of the said plot, he has no locus standi to file the complaint. Moreover, the complaint is barred by limitation as well.

5. In reply, the learned counsel for respondent stated that they had paid 58% of the total amount in question to the petitioner and hence, there was no reason to cancel the said allotment in their favour. The order passed by the State Commission is a detailed speaking order and the said order should be upheld.

6. The learned counsel also invited our attention to the clauses of the allotment letter dated 05.02.2001 issued by the petitioner in favour of M/s. Jyoti Estates, wherein it has been made clear in clause VI that in exceptional circumstances, the developer may at its absolute discretion condone the delay in payment by charging an interest @24% p.a. on the delayed payment/outstandings.

7. We have examined the material on record and given a thoughtful consideration to the arguments advanced before us.

8. A material point involved in the present case is that second consumer complaint on the same facts has been made by the complainant after his first complaint was dismissed for his non-appearance on 29.08.2007. It is, therefore, to be examined whether the second complaint is maintainable at all. In the second complaint duly signed by counsel for the complainant, it has been stated as follows:- “…………

2. That the above said case is dismissed by this Ld. Forum on 29.08.2007, because of non-appearance of Complainant. It is pertinent to mention here that the Complainant by mistake was written down the date of hearing i.e. 29.09.2007 in place of 29.08.2007 in his diary. When the counsel of Complainant appeared before this Ld. Forum, on 29.09.2007 and he found that his case is not listed on the Board, then after enquiry he came to know that his case was listed on 29.08.2007 and it was dismissed by this Ld. Forum. Therefore, the Complainant has to refile the same Complaint with similar facts, circumstances and claims.

3. That the above said Complaint has already been filed with Complaint No. 307 of 2007, which has been dismissed by this Ld. Forum on 29.08.2007. Therefore, new Complaint has been filed by the same Complainant with similar facts, circumstances and claims before this Ld. Forum. It is, therefore, humbly submitted before this Ld. Forum, that kindly consider the Consumer Complaint No. 307 of 2007 as a part and parcel of this case for the sake of the documents attached and also proceed this case from the stage on which the Complaint No. 307 of 2007 has been dismissed.

…………………………………………………..”

Further, in the prayer clause, the complainant has stated as follows:- “ (i) Consider this re-filing of Consumer Complaint as Old Consumer Complaint No. 307 of 2007 in respect of all facts, circumstances, claims and documents attached herein;

(ii) Proceed this New Complaint from the same stage of hearing as Complaint No. 307 of 2007 was heard, which has been dismissed on 29.08.2007. …………..”

9. It is very clear from the version of the complainant himself that the first complaint no. 307/2007 was dismissed on 29.08.2007 for his non-appearance. It is a matter of general legal procedure that the complainant could have agitated for getting the said order dated 29.08.2007 set aside from the competent authority. In case, the competent authority did not agree to his request, he could have moved the higher authority by way of appeal, revision petition, etc. The filing of second complaint on the same facts and circumstances has not been provided anywhere as per the established legal provisions. This Commission has also observed in the case of

“Purusharath Builders Pvt. Ltd. versus Uppal Housing Ltd. & Anr. [III (2012) CPJ 500

(NC)]” that the second complaint was not maintainable. In the said case, the party had withdrawn the previous complaint on the ground that the previous counsel was not competent. The Commission observed that if there was defect in the first complaint, amendment application should have been moved or permission could have been sought or request could have been made to have liberty to file fresh complaint. It was not possible to give permission to fill-up lacuna at this stage.

10. It is very clear from the above facts that the orders passed by the Fora below suffer from a major irregularity as they have dealt with the second complaint which was legally not maintainable. In view of these circumstances, there is no need to go into the other aspects of the case and the present complaint deserves to be dismissed on this ground alone. The petitioners have also taken-up this issue in the grounds of revision petition and also during the course of oral arguments. The revision petition is, therefore, accepted. The orders passed by the State Commission and District Forum are set aside and the consumer complaint is ordered to be dismissed with no order as to costs.

..……………………………

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

..……………………………

(DR. B.C. GUPTA)

MEMBER RS/ NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

(From the order dated 16.11.2011 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai in Appeal no. 637 of 2007)

Smt Anagha Shirish Jaitpal 2/3 Saishree Apartment Shivaji Nagar Ratnagiri – 415639

Petitioner

Versus

1. Indraprastha Sahakari Griha Nirman Sanstha Maryadit Rajendra Nagar S V Road, Ratnagiri Through Shri Sanjay Shivajirao Palande Managing Committee Residing at A Wing Ground Floor, Indr aprastha Apartment Rajendra Nagar S V Nagar, Ratnagiri

2. Master Aditya Shirish Jaitpal (through his natural Guardian Mrs Anagha Shirish Jaiptal) Residing at 2/3 Saishree Apartment Shivaji Nagar, Ratnagiri – 415639

3. Miss Apurva Shirish Jaitpal (through his natural Guardian Mrs Anagha Shirish Jaitpal Residing at 2/3 Saishree Apartment Shivaji Nagar, Ratnagiri – 415639

4. Mrs Suhasini Janardha Jaitpal Residing at 2/3 Saishree Apartment Shivaji Nagar, Post Taluka District Ratnagiri

Respondents

BEFORE:

For the Petitioner Mr Balasaheb Deshmukh, Advocate

Pronounced on 27 th May 2013

ORDER REKHA GUPTA

This revision petition no. 2309 of 2012 has been filed under section 21 (b) of the Consumer Protection Act, 1986 against the order dated 16.11.2011 passed by the Maharashtra State Consumer Disputes Redressal Commission, Mumbai (the ‘State Commission’) in appeal no. 637 of 2007.

The brief facts of the complaint as per respondent no. 1/ complainant are as follows: The complainant is residing at Indraprastha Apartment and the same was constructed by the respondent – Builder, Developer and Contractor and the said Apartment was constructed on the property, the description of the property is as follows:

The property bearing Survey no. 188, Hissa no. 5 and Survey no. 188, Hissa no. 4/ 3A area admeasuring about 2760 sq mtrs., situated within the Grampanchayat Mauje Nachane, within the limits of Ratnagiri City Council the flat no. 20 is constructed in Indraprastha Apartment buildings.

The above property was owned by deceased Shirish Jaitpal (the husband of respondent no.1 and father of respondent nos. 2 and 3 and son of respondent no. 4) and constructed Indraprastha Apartment through M/s Bhagwati Construction Company, who died in an accident and after his death the respondents are the legal heirs and they are looking after the day to day affairs of the said firm. The complainant is a member of the said building, the flat in his possession was purchased by him by registered sale deed. The complainant Society was formed on 09.12.2005, at that time 49 flats were sold and 11 flats unsold. However, since the inception of the flat’s possession the respondents have never cooperated with the complainant society and on each occasion had adopted an adamant policy with regard to cutting off the water supply and locking the electricity pump room. Regarding the same, complaint was also made. In spite of repeated demand to form Society, however, the respondents had not formed the same in time and many interruptions were made by the respondents in the formation of the society. Legally the respondents are bound to do so. A resolution was passed on behalf of the Society within which all the rights and power given in favour of Shri Sanjay Shivajirao, a member of the Society and its Management Committee on behalf of the complainant’s Society –the present complaint.

The said property described herein above the respondents are legally bound to transfer the said property in favour of the complainant – society, however, the complainant repeatedly demanded, in spite of that the respondent did not transfer the same in favour of the complainant –society. The complainant – society was registered and formed on 09.12.2005 as per the requisite registration the respondents should have transferred the said property in favour of the complainant – society after registration of 4 months, however, eight months over, the respondents did not to do so, the prime demand is to convey the said property in favour of complainant – society by the respondents.

After formation and registration of the society the remaining flats were sold by the respondents. Some flats are in the name of the relatives, however, tenants were living in the said flats, however, the tenants’ maintenance charges are not being deposited with the society. The said maintenance charges are being deposited with the respondents. Previously for some flats the electricity was provided through a common meter, therefore the electricity Bill was paid by the complainant – society. However, unsold flats in B Wing, Block no. G – 3 the said flat was given on rental basis and no electricity bill, monthly service bill and water charges were paid. However, at the time of registration of the society in Z Form, an affidavit made mentioned/ narrated that the said flats will not be allotted or given for leave and licence or lease basis as per paragraph 6 of the said affidavit. The same has been violated and hence the complainant – society filed the complaint for recovery of the maintenance charges which include service tax, non- occupation tax, sinking fund and electricity charges.

The petitioner as well as respondent no. 2 and 3/ opposite party no. 1, 2 & 3 in their combined written statement have denied all the allegations of respondent no. 1/complainant, that land and building had not been conveyed, that the society’s members have not given the maintenance charges of Rs.18,016/- and also not given the Society registration expenses of Rs.8,100/- therefore, the conveyance is pending due to the non-payment of the same is pending.

It is specifically mentioned in paragraph 5 of the agreement to sale that Conveyance will be done after the receipt of entire payment, otherwise the conveyance will not be conveyed.

Regarding the same as per section 11 of Maharashtra Flat Ownership Act, 1963 is clearly mentioned. The respondents sent the notice dated 04.01.2006 to the complainant it is specifically mentioned regarding the maintenance charges and also in the letter dated 17.01.2006, 07.03.2006 and 10.05.2006 regarding the maintenance charges is informed to the complainant – Society.

The complainant has not replied any letter and it is not mentioned regarding the maintenance charges is not due and payable by them nor the maintenance charges paid by them. Due to the above, the respondents have not conveyed or transferred the said property in favour of the complainant society.

After formation of the Society, regarding the sold flats that the information was not provided is totally incorrect one and denied by the respondents herein and all the flat holders as per the information of the respondents they became the members of the said Society and their particulars are as follows:

S no. Flat Purchaser’s name Flat no. 1. Shri Vijay Garade A G 3

2. Shri Anant Govind Surve A G 5

3. Shri Sanjay Adavade A 301

Respondent no. 4/ OP no. 4 in her written statement has stated that ‘actually the said Apartments were constructed by her deceased son – Shirish Janardha Jaitpal as a Builder, Development after his accidental death, respondent no. 4 is one of the legal heirs of the deceased Shirish Jaitpal.

After death of respondent no. 1’s husband, she looks after all the affairs, as respondent no. 4 is an old aged person. For looking after the affairs of the construction activities and other allied activities this respondent had given Notarised Power of Attorney dated 28.05.2004 and 03.06.2004 to look after the maintaining the said construction activities.

In the month of June 2006, it was noticed by the respondent no. 4 by virtue of the Notarised Power of attorney the respondent no. 1 had acted illegally and this respondent had cancelled and revoked the Power of Attorney dated 22.06.2006, pursuant to the same a reference letter was given to respondent no. 1 by Registered Post AD. However, respondent no. 1 has sent false reply on 23.06.2006.

Actually the respondent no. 4 has no business with the property, only after death of this respondent’s son she has 1/4th share in the said property. Therefore, this respondent has given the reply to the present complaint, therefore the respondent no. 4 should be deleted from the complaint. Respondent no. 4 has not entered into any transaction with the complainant - society directly or indirectly and respondent no. 4 has not given any false assurance to the complainant society. Till date all the transactions byrespondent no. 1 have been done without the consent of respondent no. 1, therefore respondent no. 4 has no concern with the complaint.

The District Consumer Disputes Redressal Forum, Ratnagiri, (the ‘District Forum’) in their order dated 23.04.2007, gave the following order:

“1. Petitioner/ appellant, herein should execute conveyance deed in favour of the complainant.

2. Amount of Rs.18,016/- towards the maintenance and Rs.8,100/- towards registration charges to pay the same to the respondent no. 1.

3. Petitioner/ appellant should inform the unsold flats to the complainant society.

4. Petitioner/ apellant should pay the maintenance amount of Rs.20,900/- to the complainant. 5. Petitioner/ appellant should remit the amount of Rs.75,950/- which is received under the pretext of Society registration fees to the complainant.

6. Petitioner/ apellant should remove the chain in the covered parking and do not prevent while parking the flat purchasers.

7. Petitioner/ apellant should make arrangement to provide 24 hours water supply and the loosed wall to reconstruct the same.

8. Petitioner/ appellant should make arrangement to close the telephones wires which are lying in the air near the building.

9. The leakage should be removed or to make good in respect of the flats no. AG1, AG 4, BG 2, B – 104, B 202, C 303 and CG1.

10. Petitioner/ appellant should pay an amount of Rs.20,000/- towards the physical and mental torture and an amount of Rs.10,000/- towards the costs of this complaint to the complainant.

11. The above order should be implemented by the parties hereto on or before 23.06.2007, if such party are failed to comply the same, other party to file recovery proceeding under the provisions of Consumer Protection Act”.

Aggrieved by the order of the District Forum the petitioner/respondent no. 1 filed an appeal no. 637 of 2007 before the State Commission. The State Commission vide order dated 16.11.2011, dismissed the application for condonation of delay on the following grounds:

“ This is an application for condonation of delay in filing the miscellaneous application no. 539 of 2010 for restoration of an appeal no. 637 of 2007 which stood dismissed for default on 29.03.2010. Since there is a delay of 122 days in filing this application for restoration, this application is accompanied with an application for condonation of delay. These application are opposed by respondent/ original complainant Society on the ground that the delay of 153 days and not only of 122 days and further that the reasons mentioned in the application are not at all convincing and the delay is not satisfactorily explained.

The order which sought to be recalled is dated 29.03.2010 and which reads as under:

Appellant is absent. Appellant has not provided two sets of appeal memo. Respondent’s advocate is present. Hence, this appeal is dismissed for defaults.

Thus, it is clear that on that on that day none was present for the appellant and the impugned order was passed in those circumstances, firstly for their non- appearance and since directions earlier were not complied with.

Before dismissal, as per impugned order the matter was taken up on 1 st February 2010. On that day pursis was given to hear the application for the stay and that mater was adjourned to 29.03.2010.

As per the certified copy of the impugned order filed along with this application it could be see that copy of the said order was first issued by the Commission to the parties on 20.07.2010. It ought to have been received in the normal course. It is not disputed that it was sent on current address. However, there is no statement made in the application as to on which date said copy was received. However, endorsement further shows that the first copy which was issued on 20.07.2010 was delivered to him and the duplicate copy thereafter was obtained by the applicant/appellant on 30.08.2010. Therefore, the delay ought to have been counted from 20.07.2010 to meet this application for recalling the order, in other words for restoration.

The reasons mentioned seeking condonation of delay, relevant for the purpose of decision of this application for condonation of delay are contained in paragraphs nos. 7 to 11. It first concluded that impugned order received by the applicant/appellant on 13.08.2010 when it received a notice in execution application under section 27 of the Consumer Protection Act, 1986. Thereafter, it is pleaded that mother of the applicant – Ms Anagha was hospitalized due to her ailment and therefore, she could not take immediate steps and thereafter she herself hospitalised since April 2010. Then it is further stated that from 01.09.2010 she was not keeping well again. It is contended that on 30 th August 2010 she obtained the certified copy and then made this application.

Though it is not expected to go too technically to scan reasons given to explain the delay on day-to-day but it is reasonably expected that the delay should be properly explained. The delay is tried to be explained making statement that the applicant/appellant’s mother was ill and hospitalized. The statement is vague and does not show that the applicant was so circumtised that it was not possible for her to attend her routine life or there exists circumstances (no statement including such circumstances is made) from which it could be reasonably inferred that it was really not possible for her to take steps to file the application in time. Considering the totality of the circumstances, we find that this enormous delay is not at all satisfactorily explained. Reasons mentioned for so called delay are not at all convincing. We hold accordingly and the pass the following order:

Application for condonation of delay stands dismissed.

In the result Miscellaneous Application no. 539 of 2010 for restoration viz., the recalling the order dismissing the appeal in default is not maintainable”.

Hence, the present revision petition.

- The main grounds for the revision petition have been that the learned Court ought to have adopted a common procedure as is being adopted by the State Commission, Maharashtra, Mumbai when the matter is admitted and kept sine-die. The State Commission, Maharashtra, Mumbai ought to have issued a notice to the respective parties of the final hearing there is a delay in the present appeal this exercise has not been done by the State Commission. This shows that the State Commission has not exercised the jurisdiction vested under the law. Hence, the impugned judgment and order may be quashed and set aside.

- Learned Court has not at all considered the fact that the mother of the applicant, who is aged and was having heart problem at the relevant time and when the applicant no. 1 produced medical certificate to that effect this aspect was not at all considered in the prospective sense. Hence, interference of this Court is necessary. - Learned Court ought to have considered that the applicant no. 1 herself was not well as she herself was having fever and severe malaria and she was taking medical treatment from his doctor in addition to this the applicant has produced the medical certificate, documents of the petitioner/applicant no. 1 certifying that the petitioner/applicant no. 1 was having fever and having severe malaria. This aspect has not all considered by the State Commission in its prospective sense and came to the wrong conclusion. Hence, interference of this Hon'ble court is necessary.

Along with the revision petition an application for condonation of delay has also been filed. The reasons given in the application for condonation of delay of 120 days are as follows:

The applicant states that the applicant is a widow and she is having two school going children and one aged mother and aged father. The applicant states that the applicant i.e., widow is the only person in her family to look after the entire family and the entire family is dependent upon the applicant herein.

The applicant states that after getting the impugned judgment and order dated 16.11.2011 in the month of December 2011, the applicant approached the trial court Advocate for taking advice to take appropriate steps in respect of the said impugned judgment. The applicant states that the trial court advocate assured that he will give and suggest the name and refer the matter to appropriate Advocate who will file appropriate proceedings before this Hon’ble National Commission. The applicant states that the applicant being a widow and does not have any contacts with the Advocate practicing this Hon’ble Commission, therefore, the applicant solely relied and depended upon the trial court Advocate. Therefore, the applicant states that the aforesaid reasons were beyond the control of the present applicant, therefore, delay may be condoned. Applicant states that the applicant kept following up with the said Advocate from time to time. Applicant states that some time he responded that he is in contact with the Advocate at Delhi, sometime had said that he could not get the time to contact the Delhi Advocate. Applicant states that in the month of April 2012, the said Advocate raised his hand and informed the applicant that he is unable to refer my matter. It was shocking and surprising for me. The applicant states that due to the aforesaid reasons the applicant could not approach this Hon’ble Court as the reasons beyond the control of the present applicant.

The applicant states that she is a widow and she is the only member who is required to run everywhere.

The applicant states that the applicant’s mother is 62 years of old age and she is a heart patient with Pulmonary, Hyper Tension with Deefvein, thrombin, Dee cellulites. The applicant states that on 15.02.2012 the applicant’s mother was complained pain in her chest, she was admitted at Sparsh Clinic on 15.02.2012 to 23.02.2012.

The applicant states that the mother of the applicant after discharge advised regular treatment and periodic follow-up therefore, the applicant is required to be with her mother. The applicant states that about 2 months the applicant was required to be with her aged mother as there is no male member in her family who will look after and assist her. The applicant states that Dilip Kulkarni the Doctor who has given regular and periodical treatment for congenital heart disease – Esinmeger Syndrome. The said Dr Kulkarni is still giving periodical treatment of the mother of the applicant herein.

The applicant states that the father of the applicant is also aged and he is not able to assist the present applicant as his both knees are not supporting him. The applicant states that the father of the applicant’s knee is not supporting to stand own foots as both the knees are getting paid and therefore, he is not in a position to stand. The applicant states that father of the applicant is also aged and he is also required regular treatment on his both the knees. The applicant states that due to the aforesaid reasons the applicant could not approach this Hon’ble Court within time. The applicant craves leave to refer to any rely upon the medical certificate at the time of oral hearing of this application.

The applicant states that the applicant is having two school going children. The applicant states that the applicant is required to take care of the patient i.e., aged mother as well as her father and also required to take her school going children and their examination, school etc. The applicant states that the children’s examination was held in the month of April/ May 2012 and therefore due to the examination of the children the applicant could not get time to approach this Hon’ble Court challenging and filing the present revision petition. The applicant states that due to the aforesaid reasons the applicant could not approach this Hon’ble Court as the reasons beyond the control of the present applicant. Hence, the delay may be condoned on the aforesaid ground.

The applicant states that in the mid may vacation of 2012 one of her friends gave the contact number of the present advocate. Thereafter, she forwarded may papers to him. The applicant states that as it is bulky proceedings and being only lady and widowed women she could not attend his office at Delhi. Therefore, sometime has been lapsed for giving instruction and preparation of the present proceedings. The applicant states that due to the aforesaid reasons the applicant could not approach this Hon’ble Court as the reasons beyond the control of the present applicant. No prejudice, would be caused to the respondent if this application is allowed, whereas if this application is not allowed, grave and irreparable loss will be caused to the applicant which cannot be compensated in terms of money. Even otherwise, for meeting ends of justice, the applicant submits that the application be allowed. It is seen that the petitioner has taken almost the same plea in the application for condonation of delay that she had taken before the State Commission. She has appended some medical certificates. The first being regarding herself where she has stated that she has been 5 of this Commission within eight weeks from today. In case the petitioner fails to deposit the said cost within the prescribed period, then it shall be liable to pay interest @ 9% per annum till realisation.

List on 2nd August 2013 for compliance.

Sd/- ..………………………………

[ V B Gupta, J.]

………………………………..

[Rekha Gupta]

Satish NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO. 738 OF 2012 (From the order dated 17.11.2011 in Appeal No.1419/2009 of the State Commission, Mumbai, Maharashtra)

1. a) M/s. Foresquare Developers,

Kantilal House, 14 Mama Paramanand Marg,

Mumbai 400 004.

b) Smt. Nalini Himmatlal

c) Mukesh Himmatlal

d) Smt. Hiral Rajesh

e) Wonder Estate Developers Pvt. Ltd.

Kantilal House, 14 Mama Parmanand Marg,

Mumbai 400 004 …Petitioners

Versus

1. Dahisar Saraswati Co-operative Housing Society Ltd.

C.S.T. Road No. 4,

Dahisar (West), Mumbai- 400 068

Through Member/Secretary Shri. Dixit P. Mehta

2. a) Keshav Arjun Raut

(Dahisar Wale), At & Post Waliv,

Taluka Vasai (East), Dist. Thane

b) Mayur Keshav Raut

c) Smt. Malati Keshav Raut

d) Smt. Prema Arjun Mhatre

e) Bharat Keshav Raut

f) Miss Hema Keshav Raut

g) Smt. Sushila Jagannath Raut

h) Padmakar Jagannath Raut

i) Miss. Devayani Jagannath Raut