Chandigarh

DF-II

CC/451/2014

Shakti Kondal - Complainant(s)

Versus

Ansal Lotus Melange Projects Pvt. Ltd. - Opp.Party(s)

Ravinder Pal Singh, Adv.

19 Jan 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

 

Consumer Complaint No.	:	451/2014
Date of Institution	:	02.09.2014
Date of Decision	:	19.01.2017

 

                                       

                                               

1.     Shakti Kondal s/o Sh.Narain Dutt Sharma.

 

2.     Sudesh Sharma w/o Sh.Shakti Kondal

 

Both residents of # 222/1, “Basera” Near St. Marry’s School, Haripur, Sundar Nagar, District Mandi, Himachal Pradesh.

                                ...  Complainants.

Versus

 

1]     Ansal Lotus Melange Projects Pvt. Ltd., Registered Office at 1/18B,         Asaf ali Road, New Delhi 110002, through its Managing Director.

 

2]     Ansal Lotus Melange Projects Pvt. Ltd., Regional Office at SCO         No.183-184, Sector 9-C, Chandigarh, through its Executive Sales & Marketing Support.

…. Opposite Parties.

BEFORE:    SHRI RAJAN DEWAN, PRESIDENT

SMT.PRITI MALHOTRA, MEMBER

SHRI RAVINDER SINGH, MEMBER

 

Argued by:

Sh.R.P.Singh, Adv. for the complainant.

Sh.Subhash Chand, Adv. Proxy for Sh.Vaibhav Narang, Adv. for the OPs.

 

PER RAJAN DEWAN, PRESIDENT

1.         In brief, the case of the complainants is that they, with an intention to settle down near Chandigarh and to own a residential flat for their family, agreed to purchase a 2 BHK flat from the OPs in their residential project Orchard County in Sector 115, situated on the Kharar-Landran Road, District Mohali. Accordingly, the complainants booked a flat measuring 1324 sq. ft. bearing No.704 in Tower No.11 comprising of 2 BHK at the rate of Rs.2477.77/- per sq. ft., which comes to Rs.32,79,548/- plus PLC @ Rs.100/- per sq. ft. i.e. Rs.1,32,400/-,  totaling Rs.34,11,948/- by paying a sum of Rs.5,11,792/- through two demand drafts for Rs.2.50 lacs and Rs.2,61,793/- on 18.02.2010 vide application Annexure C-1. Thereafter, on 30.04.2010 an allotment letter was signed between the complainant and the OPs.  It has further been averred that the complainants earlier booked the flat on 18.02.2010 under the subvention scheme under the Down Payment Plan but when they approached the bank for getting the loan, the Bank rejected to grant loan and ultimately, the complainants changed the plan from Down Payment to Construction Link Plan.  It has been alleged that the OPs very cleverly on the Clause of possession has changed the terms of the Clause from 24/30 months (as shown in the application form vide Clause 11) to reasonable time (Clause 11 of the allotment letter).  Subsequently, the complainants after borrowing the amount from their relatives/friends transferred the amount of Rs.27 lacs in the account of the OPs on 24.03.2012 through RTGS (Annexure C-5).  However, the OPs out of Rs.27 lacs dishonestly adjusted Rs.9,98,121/- against the penal interest for non-payment of the amount of the installments under the down payment plan and rest of Rs.17 lacs against the installments vide statement of account dated 07.09.2012 whereas the complainants have already paid an amount of Rs.32,11,792/-.   Now the OPs have sent a demand letter dated 25.06.2014 demanding Rs.12,00,081/- even after paying an amount of Rs.32,11,792/- by the complainants and they have also threatened that if the complainants failed to deposit the same within 10 days then the OPs would act as per Clause 9 of the application form and Clause 5 of the Allotment. According to the complainants, this act of the OPs amount to deficiency in service as also indulgence into unfair trade practice because they have dishonestly changed the payment plan. It has further been averred that the flat is not completed even in July, 2014 and therefore there is a huge delay in handing over the possession of the flat and as such the complainants are entitled for compensation for delay in delivery of the possession of the flat. According to the complainant, the allotment letter was not in consonance with Section 6 of the Punjab Apartments and Property Regulation Act, 1995.  It has been averred that in view of Section 6(1) of the PAPRA Act, the builder cannot accept any sum of amount more than 25% unless and until a valid agreement is signed with an intending allottee. It is averred that the OPs at their own increased the super area of the flat from 1324 sq. ft. to 1405 sq. ft. Further, the OPs have illegally charged the complainants an amount of Rs.1,00,000/- for car parking.  Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of the OPs, the complainant has filed the instant complaint.
2.         In its written reply, the OPs took a number of preliminary objections including that the complaint is not maintainable; that the disputed questions of fact and law are involved in the present case which cannot be decided in summary proceedings; that the complainants are not consumers as defined under the provisions of the Consumer Protection Act, 1986. It has been averred that after singing the allotment letter, the terms and conditions thereof has to be seen and not the application form. It has further been pleaded that the complainants have chosen down payment plan and the allotment letter was sent in the year 2010, however, the complainants have not raised any objection for more than 4years nor they approached the OPs for change of payment plan. It is pertinent to mention here that no illegal amount has been dishonestly adjusted as alleged. It has been pleaded that as per Clause 9 & 10 of the allotment letter, OPs were entitled to charge the amount for the increased area and there is no illegality to that extent. Further, as per Clause 8 and 9 of the allotment agreement, the complainants had given their unconditional consent to any variation and modification in the area. It has been pleaded that nothing was charged by the OPs which was beyond the terms and conditions of the allotment agreement. Pleading that there is no deficiency in service or unfair trade practice on their part, a prayer for dismissal of the complaint has been made.
3.         The complainants filed rejoinder to the written reply of the OPs controverting their stand and reiterating their own.
4.         The parties led evidence in support of their contentions.
5.         We have heard the ld. Counsel for the parties and have also perused the record.
6.         After hearing the Counsel for the parties and going through the documentary evidence on record, we are of the considered view that the complaint is liable to be dismissed for want of pecuniary jurisdiction in view of the principle of law laid down in the latest judgment of the Hon'ble National Commission passed in the case titled as  Ambrish Kumar Shukla & 21 Ors. Vs. Ferrous Infrastructure Pvt. Ltd., CC No.97 of 2016, decided on 7.10.2016. In para No. 15 of the judgment while dealing with reference dated 11.8.2016, the Hon'ble National Commission has held as under:-

“Issue No.(i)

        It is the value of the goods or services, as the case may be, and not the value or cost of removing the deficiency in the service which is to be considered for the purpose of determining the pecuniary jurisdiction.

Issue No.(ii)

Xxxxxx

Issue No.(iii)

xxxxxx

Issue No. (iv)

In a complaint instituted under Section 12(1)(c) of the Consumer Protection Act, the pecuniary jurisdiction is to be determined on the basis of aggregate of the value of the goods purchased or the services hired or availed by all the consumers on whose behalf or for whose benefit the complaint is instituted and the total compensation claimed in respect of such consumers.”

                From the afore extracted para,  it is evident that It is the value of the goods or services, as the case may be, and not the value or cost of removing the deficiency in the service which is to be considered for the purpose of determining the pecuniary jurisdiction. The Hon’ble National Commission has further held that while determining pecuniary jurisdiction by the consumer Fora they are required to take into consideration the aggregate value of the goods purchased or services hired or availed by consumer plus compensation.   In the instant case, as per the own version of the complainants made in the complaint, the total price of the unit in question is Rs.34,11,948/-, which is clearly beyond the pecuniary jurisdiction of this Forum, as prescribed under Section 11 of the Consumer Protection Act, 1986. Section 11 of the Consumer Protection Act, 1986 provides that this Forum shall have jurisdiction to entertain complaints where the value of the goods or services and compensation if any claimed does not exceeds Rs.20,00,000.  Hence, keeping in view the provisions of Section 11 of the Consumer Protection Act, 1986 and the principle of law laid down by the Hon’ble National Commission in  Ambrish Kumar Shukla’s case (supra) this complaint is not maintainable being out of pecuniary ambit of this Forum and the same deserves to be dismissed alone on this ground.

7.         For the reasons recorded above, the complaint is dismissed being not maintainable for want of pecuniary jurisdiction. However, the complainants are at liberty to approach the appropriate authority/Commission, having the pecuniary jurisdiction, under the provisions of law for redressal of their grievance.  They may take advantage of the ruling of the Hon’ble Supreme Court in Laxmi Engineering Works Vs. PSG Industrial Institute, (1995) 3 SCC 583, to seek exclusion of time spent before this Forum. 
8.         Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announce­d

19.01.2017                                                

Sd/-

  (RAJAN DEWAN)

PRESIDENT

 

Sd/-

(PRITI MALHOTRA)

MEMBER

 

Sd/-

(RAVINDER SINGH)

MEMBER