Punjab

StateCommission

CC/129/2013

Mrs. Vanita Kochar - Complainant(s)

Versus

BCL Homes Ltd. - Opp.Party(s)

Harish Goyal & Aman Rehal

27 Apr 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION, PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                             Consumer Complaint No.129 of 2013

                                                          Date of Institution: 18.11.2013  

                                                          Date of Decision : 27.04.2015

 

Mrs. Vanita Kochar W/o Sh. Anil Kochar, R/o House No.361, Moti Ram Street, Sunami Gate, Sangrur.

 

                                                                             …..Complainant…..

         

                                      Versus

 

BCL Homes Limited, through its Managing Director, Chinar Honmes, Vilalge Kishanpura, (Adj to Sector 20, Panchkula), NAC Zirakpur, District Mohali Punjab

 

Second Address :

 

Shop No.140, Railway Road, Village Dariya, U.T Chandigarh.

 

Third Address :

 

SCO 8, Sector 26, Madhya Marg, Chandigarh

                                                                             ….Opposite party.

 

         

Consumer Complaint U/s 17 of the Consumer Protection Act, 1986 (as amended up to date).

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member.

          Shri Harcharn Singh Guram, Member.      

Present:-

 

          For the complainant                   :  Sh.Harish Goyal, Advocate

          For the Opposite party              :  Sh. Pankaj Nanda, Advocate.

 

          . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

 

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                                     

           The complainant has filed this complaint through its proprietor Hardeep Singh U/s 17 of the Consumer Protection Act 1986 (for short the "Act) against the OP on the allegations that OP promised that flat at Chinar Homes i.e. three bedroom flat under construction and would be allotted very shortly, if complainant booked them in advance. The total price of the flat was Rs.27 lac and complainant was to pay 10% thereof of Rs.2,70,000/- in advance, as booking amount/registration fee. The complainant paid Rs.2,70,000/- to OP on 09.02.2011, vide cheque no.154871 dated 09.02.2011 for an amount of Rs.2,70,000/-, drawn on Punjab National Bank. In lieu of the same OP has issued a receipt no.002992 dated 09.02.2011. The aforesaid cheque was cleared on 11.02.2011. The OP issued letter to the complainant for arranging three bedroom flat within a period of one year up to 30.11.2011. It was also stated that in case they were not made ready up to 30.11.2011 to complainant, then they would refund Rs.5,40,000/- (Rs.2,70,000/- as registration fee and Rs.2,70,000/- as penalty). It was also agreed, that if before 30.11.2011,  the complainant wanted to cancel the flat, he could get refund of the amount with interest @ 24% per annum. It was further stated that if complainant did not want to accept the flat on 30.11.2011, then they would refund Rs.5,40,000/- to complainant. The amount of Rs.2,70,000/- of the flat would be adjusted towards final payment of Rs.2,70,000/- and balance payment was to be paid on installments commencing from 30.11.2011. The complainant approached many times for allotment and possession of the flat, but OP put off the complainant on one pretext or the other. The complainant has, thus, filed the complaint against the OP directing them to allot the flat to the complainant for a price of Rs.2,70,000/- after adjusting Rs.2,70,000/- or in the alternative to pay Rs.5,40,000/- with interest @ 24% p.a from 30.11.2011 till actual payment. The complainant has also prayed for compensation of Rs.2 lac for mental harassment and Rs.22,000/- as costs of litigation.

2.      Upon notice, OP appeared and filed written reply by raising preliminary objections that complainant is not a consumer. Purchase of second house by complainant signify, that it was purchased by complainant for commercial purposes and hence complaint is not maintainable. The complainant has not pleaded that he purchased the flat for self-employment  for earning his livelihood . It was further averred that purchase of the flat is not a sale of goods, as contemplated under Section 2(7) of Sales of Goods Act 1930, hence complaint is not maintainable. The complainant has no right to sue the OP in any capacity. There is no cause of action available to complainant. The jurisdiction of the Consumer Forum was contested to entertain the complaint. The complaint was also contested even on merits by the OP. It was pleaded that complainant purchased the said flat solely for earning profits and hence complainant cannot be  a consumer and OP prayed for dismissal of the complaint.

3.      The complainant tendered in evidence her affidavit Ex.C-A, copy of letter from OP to complainant Ex.C-1, copy of receipt dated 09.02.2011 Ex.C-2, copy of bank statement of complainant Ex.C-3,

As against it, OPs tendered evidence affidavit of Sada Chand, Authorized Signatory/Director of OP Ex.OP-1/A and closed the evidence.

4.      We have heard Ld.Counsel for the parties and have also examined the record of the case. The first point falling for adjudication in this case, as contended by counsel for OP before us, is whether complainant is a consumer of the OP in this case or not. From perusal of record, we find that OP filed an application before this Commission for rejecting the complaint of the complainant. Reply thereto from the complainant was taken. The application was disposed of by virtue of order dated 27.05.2014 of this Commission holding that the complainant is consumer qua OP and hence the application filed by the OP for dismissal of the complaint at that stage on that score was dismissed. Finding has already been returned by this Commission, while disposing of the application for rejection of this complaint put in by OP on 27.05.2004, holding the complainant to be a consumer. This Commission has no authority to review its own order under law. Consequently, this order has already become final on 27.5.2014 to the effect that complainant is a consumer.

5.      Now, we proceed to examine this point as to whether the complainant is entitled to relief directing the OP to allot the plot for a price of Rs.27 lac or in the alternative complainant is entitled to recover the amount of Rs.5,40,000/- along with interest @ 24% per annum from 30.11.2011 from Ops, besides compensation of Rs 2 lac from for mental harassment and Rs.22,000/- for costs of litigation. The pleadings of the parties have been carefully examined by us. The affidavit of the complainant Ex.C-A is on the record. This affidavit has also been carefully gone through by us. Ex.C-1 is registration number addressed to the complainant by OP of this flat. It is recorded in it that offer of OP to complainant is to the effect that she was required to pay Rs.2,70,000/- as registration fee and OP would arrange and allot three bedroom flat price of Rs.27 lac within one year up to 30.11.2011. It is also recorded in it that if OP is not able to arrange and allot the above said flat in one year, then OP would refund  the registration amount of Rs.2,70,000/- with an additional penalty of Rs.2,70,000/- (total amount of Rs.5,40,000/-) to the complainant. It is further recorded in it that if complainant is not interested in taking the said flat for whatever reason, the OP would refund the registration  amount of Rs.2,70,000/-, total amount of Rs.5,40,000/- to complainant. In case complainant arranged/allotted flat, then Rs.2,70,000/-, which were already paid to Op would be adjusted in the total price of the flat of Rs.27 lac and balance amount would be paid in installments commencing from 30.11.2011. Ex.C-2 is receipt dated 09.02.2011, Ex.C-3 is statement of account of the complainant.

6.      The counsel for OP submitted that the complainant had only paid Rs.2,70,000/- and hence jurisdiction of this Commission is excluded because the jurisdiction of this Commission exceeds beyond 20 lac. We find that the total value of the plot is Rs.27 lac and total value has to be considered for the purpose of jurisdiction by us and hence the contention of OP is not accepted on this point.

7.      In view of Ex.C-1, we find that OP is bound by it. The complainant wants a direction to OP to deliver the possession of the flat to her by allotting it after adjusting the amount of Rs.2,70,000/- out of the total price of Rs.27 lac or in alternative to pay the amount of Rs.5,40,000/- to complainant with interest @ 24% per annum. In view of Ex.C-1, OP was allotted the said flat by 30.11.2011 to complainant. The flat has not been allotted to complainant within the stipulated period. The OPs have not completed any such flat and as such the complainant has not paid the balance amount to the Ops due to the fault of OPs alone. We could thus not issue the direction for allotment of the flat to her with the delivery of possession and as such we are of this view that in view of Clause 4 of Ex.C-1, we hereby direct the Ops to refund the registration amount of Rs.2,70,000/-, besides the agreed amount of penalty of Rs.2,70,000/- thereupon as agreed by the OPs totaling of Rs.5,40,000/-

8.      In view of our above discussion, we accept the complaint of the complainant and direct the OP to pay the composite amount of Rs.5,40,000/- to complainant within 45 days from the date of receipt of copy of this order, failing which OP would pay interest @ 9% per annum thereupon from the date of this order till its actual realization.

9,     Arguments in this complaint were heard on 22.04.2015 and the order was reserved. Now the order be communicated to the parties.

10.    The complaint could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

                       

                                                          (HARCHARAN SINGH GURAM)                                                                        MEMBER

 

April 27  2015.                                                               

(ravi)