Chandigarh

StateCommission

CC/215/2016

Mrs. Manjit Kaur Brar - Complainant(s)

Versus

DLF India Ltd. - Opp.Party(s)

Sh. Arvinder Sehdev, Adv.

17 Oct 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

                    UNION TERRITORY, CHANDIGARH

 

 

Consumer Complaint  No.

215 of 2016

Date of Institution

17.05.2016

Date of Decision    

17.10.2016

 

 

Mrs. Manjit Kaur Brar W/o S. Charanjit Singh Brar, resident of House No.1059, Sector 69, Mohali.

                                                .…Complainant

Versus

 

  1. DLF India Limited, DLF City Centre, Rajiv Gandhi IT Park, Kishngarh, through its authorized signatory.
  2. M/s DLF Universal Limited (earlier known as M/s DLF India Limited), SCO No.190-192, Sector 8-C, Chandigarh.

…..Opposite Parties.

BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

MR. DEV RAJ, MEMBER

            MRS. PADMA PANDEY, MEMBER.

 

Argued by:Sh. Arvind Sehdev, Advocate for the complainant.

Ms. Ekta Jhanji, Advocate for the Opposite Parties.

 

PER DEV RAJ, MEMBER

             In brief, the facts of the case, are that the complainant being a 70 years of old lady applied for a plot measuring 350 sq. yards in the project of the Opposite Parties i.e. “Hyde Park Estate, New Chandigarh (Mullanpur Planning Area), Mullanpur, S.A.S. Nagar, Mohali, Punjab”. She was allotted Plot No.HPE-R1-B-610 vide allotment letter dated 31.03.2011, the total basic price whereof was fixed at Rs.89,24,935/-. After 9% down payment rebate, the complainant was required to pay Rs.1,00,82,858/-, which included External Development Charges of Rs.4,80,222/-, Rs.14,35,107/- as Preferential Location Charges (PLC) and Rs.1,74,999/- as MSE charges. The complainant initially paid Rs.12,00,000/- to the Opposite Parties on 31.01.2011 and thereafter paid Rs.81,65,846.34 on 09.05.2011 against demand raised vide letter dated 24.04.2011. The complainant complied with the agreed terms so far as payment schedule was concerned. It was further stated that as per Clause 15 of the allotment form dated 27.03.2011, possession of the plot was to be delivered within 24 months from the date of execution of the Agreement. It was further stated that the Opposite Parties dispatched Buyer’s Agreement only on 21.11.2011 and after signing, the same was sent back to the Opposite Parties and acknowledged by them on 27.12.2011. However, the Plot Buyer’s Agreement, was finally signed/executed by the Opposite Parties on 17.02.2012 and sent to the complainant vide letter dated 17.02.2012 (Annexure C-8).

2.          It was further stated that as per Clause 32 of the said Agreement, possession of the plot was to be offered within 24 months from the date of execution of the said Agreement. It was further stated that the Opposite Parties collected 95% payment before signing of the Agreement against 25% collectable money, which was in violation of Clause 6(1) of the Punjab Apartment and Property Regulation Act, 1995. The Opposite Parties further increased the 9% earlier payment rebate to 12.5% w.e.f. 17.11.2011. It was further stated that the possession of the plot was required to be given within 24 months from 09.05.2011 when 95% payment stood received by the Opposite Parties and not from 27.12.2011 when Agreement was signed (Infact it is 17.02.2012).  It was further stated that the Opposite Parties delayed the signing of the Buyer’s Agreement by 7 ½ months after receiving 95% payment with the sole purpose of depriving compensation as mentioned in Clause 32 of the  Agreement. It was further stated that in case of delayed payment, the Opposite Parties were charging interest @12% for first 90 days after the due date and thereafter, additional penal interest @15% per annum. It was further stated that the complainant is also entitled to the same interest @15% per annum for the delayed possession. It was further stated that on 26.09.2012, the complainant received a letter stating possession in six months and subsequently, on 25.09.2014, stating that possession would be delivered shortly.

3.          It was further stated that vide letter dated 17.11.2014, the Opposite Parties demanded the remaining amount alongwith cost of stamp papers, which was due at the time of possession from the complainant. Accordingly, the complainant paid Rs.12,50,119/- to the Opposite Parties as per the demand raised vide receipt dated 15.12.2014. It was further stated that even after receipt of the aforesaid amount, the Opposite Parties neither executed the conveyance deed uptil 13.05.2015 nor give possession of the plot uptil 29.06.2015.  Vide letter dated 8.5.2015, the Opposite Parties asked the complainant for remitting the entire payment for registration. It was further stated that after payment, the conveyance deed was executed on 29.06.2015 and possession of the plot was handed over to the complainant vide possession certificate dated 29.06.2015 (Annexure C-17).  Thus, the total amount on account of interest for delayed period, as per Clause 53 of the Agreement, on Rs.93,65,847/-, came to be Rs.28,09,754/- calculated up-to 29.06.2015. It was further stated that the Opposite Parties were also liable to pay interest @15% per annum on Rs.12,50,000/- from 15.12.2014 till 13.05.2015 on account of delay in execution of conveyance deed, which came to be Rs.93,750/-.

4.          It was further stated that as per latest layout plan, saleable residential area is 398428.80 sq. yards and accordingly, chargeable rate (EDC) becomes Rs.1033.59 per sq. yard and for the plot, in question, which is 350 sq. yard plot, total chargeable EDC came to be Rs.3,61,759/-, whereas the Opposite Parties had received Rs.5,12,957.33 from the complainant on account of EDC. It was stated that the complainant is, thus, entitled to refund of excess amount of EDC charged by the Opposite Parties i.e. Rs.1,51,198.33 i.e. (Rs.5,12,957.33 – Rs.3,61,759.00).

5.          It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, seeking directions to Opposite Parties to pay Rs.28,09,754/- alongwith interest; additional amount of Rs.3,62,601/- on account of extra 3.5% rebate; Rs.1,51,198.33 on account of excess EDC alongwith interest @15% per annum; Rs.5,00,000/- as compensation for physical harassment and mental agony and Rs.50,000/- as litigation expenses.

6.         The Opposite Parties in their written statement took up certain preliminary objections to the effect that in the face of arbitration clause contained in the Agreement, dispute if any, was required to be referred to an Arbitrator, as such, the consumer complaint was not maintainable; that the parties are bound by the terms and conditions mentioned in the Agreement; that since the proceedings before the Consumer Foras are summary, in nature, this Commission is not competent to adjudicate this complaint and that the sale of plot of land simpliciter ousts the jurisdiction of 1986 Act.

7.          On merits, it was stated that the complainant was allotted a plot bearing No.HPE-R/1-B-610 vide allotment letter dated 31.03.2011 for total sum of Rs.1,00,82,858.34 measuring 350 sq. yard and Plot

 

Buyer’s Agreement was executed on 17.02.2012. It was stated that the complainant was offered possession. It was further stated that the conveyance deed was also executed and the possession certificate was also given on 29.06.2015. It was further stated that the application for allotment, which also contained various terms and conditions binding on both the parties was executed on 25.03.2011 i.e. before accepting the amount of Rs.81,65,847/- paid by the complainant on 09.05.2011. It was further stated that the Opposite Parties clearly adhered to Clause 6(1) of the PAPRA Act 1995. It was further stated that on obtaining the partial completion certificate, a communication dated 25.09.2014 was sent to the complainant by the Opposite Parties and it was the complainant who made the payment of Rs.6,81,000/- for registration on 15.05.2015, in pursuance to which, the registration and possession was executed on 29.06.2015. It was further stated that delay in handing over possession was procedural and the delay in registration of the plot, in question, was on the part of the complainant. It was further stated that at the time of signing of the application for allotment on 25.03.2011, the down payment rebate was 9%. It was further stated that the early payment rebate was 12.5% for any payment before the due date whereas the complainant made no early payment and, therefore, the complainant was never entitled for 12.5% rebate. It was further stated that the early payment rebate policy was withdrawn on 31.03.2013. Payment of Rs.l2,50,119/- against demand raised was admitted by the Opposite Parties. It was further stated that noting beyond the duly demanded and paid EDC has been charged from the complainant. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties nor they indulged into any unfair trade practice. The remaining averments, were denied, being wrong.

8.          The complainant filed rejoinder, wherein, she reiterated all the averments, contained in the complaint, and repudiated the same, contained in the written version of the Opposite Parties.

9.          The complainant, in support of her case, submitted her own affidavit, by way of evidence, alongwith which, a number of documents were attached.

10.        The Opposite Parties, in support of their case, submitted joint affidavit of Sh. Shiv Kumar and Sh. Mahinder Singh, their Authorized Signatories, by way of evidence, alongwith which, a number of documents were attached. 

11.        We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 

12.        Admittedly, with reference to application dated 25.03.2011 (Annexure C-5), the complainant was allotted Plot No.HPE-R1-B610 measuring 350 sq. yard by the Opposite Parties, in their project, namely, ‘Hyde Park Estate’ New Chandigarh (Mullanpur Planning Area), District SAS Nagar, Punjab vide allotment letter dated 31.03.2011 (Annexure C-1). The Plot Buyer’s Agreement was executed between the complainant and the Opposite Parties on 17.02.2012 (Annexure C-7) at Chandigarh. The complainant opted for Down Payment Plan. As per Annexure II annexed to the Agreement, the total price of the plot, in question, was Rs.1,10,15,262.24Ps and after giving down payment rebate in the sum of Rs.9,32,404/-, the consideration amount was Rs.1,00,82,858.24Ps. The complainant has made the following payments:-

S.No.

Date

Amount

Head/(s)/Annexure

  1.  

25.03.2011

12,00,000/-

Booking amount. (Annexure C-3)

  1.  

09.05.2011

77,40,000/-

(Annexure  C-4)

  1.  

09.05.2011

2,98,847/-

(Annexure C-4)

  1.  

09.05.2011

1,27,000/-

(Annexure C-4)

  1.  

15.12.2014

12,50,119/-

(Annexure C-13)

  1.  

15.05.2015

6,81,990/-

(Annexure C-16)

 

Total Paid

Rs.1,12,97,956/-

 

 

13.       Perusal of record reveals that possession of the plot, in question, stands delivered to the complainant vide possession certificate (Annexure C-17) on 29.06.2015. The sale deed of the plot, in question, also stands executed.

14.       By filing the instant complaint, following relief has been claimed by the complainant:-

  1. OPs may be directed to pay an amount of Rs.28,09,754/- to the complainant alongwith interest on account of delayed handing over the possession of the plot in question.
  2. That an additional amount of Rs.3,62,601/- be paid to the complainant i.e. extra 3.5% rebate as offered by the OPs (Annexure C-9).
  3. OPs may be directed to pay an amount of Rs.1,51,198.33 on account of charging excessive EDC along with interest @15% per annum from their respective dates and receipt.
  4. OPs may be directed to pay an amount of Rs.5 lacs to the complainant on account of harassment, mental agony and humiliation meted out to the complainant due to their unfair trade practice and deficiency in service.
  5. An amount of Rs.50,000/- may kindly be awarded in favour of the complainant on account of litigation expenses.
  6. Any other order or direction may be passed as may be considered appropriate by this Hon’ble Commission in favour of the complainant and against the opposite parties.

15.       Section 17 (1) (a) (i) of the Consumer Protection Act 1986, relating to pecuniary jurisdiction of the State Commission reads thus:-

“17.         Jurisdiction of the State Commission. — (1) Subject to the other provisions of this Act, the State Commission shall have jurisdiction—

(a)  to entertain—

(i) complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees twenty lakhs but does not exceed rupees one crore; and

(ii) …………………

(b) ……………………..”.

 

16.       Further as per ratio of judgment passed by a three Member Bench of Hon'ble National Consumer Disputes Redressal Commission, New Delhi in the case of AMBRISH KUMAR SHUKLA & 21 ORS. Vs. FERROUS INFRASTRUCTURE PVT. LTD., Consumer Case No.97 of 2016, decided on 07.10.2016, for the purpose of determining the pecuniary jurisdiction of the Consumer Fora, value of goods or services, or the consideration paid or agreed to be paid at the time of purchasing the goods or hiring or availing of the services, as the case may be, alongwith compensation claimed is to be taken into account. The National Commission in Para 15, under Reference dated 11.08.2016, inter-alia, 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. (iii)

          The consideration paid or agreed to be paid by the consumer at the time of purchasing the goods or hiring or availing of the services, as the case may be, is to be considered, along with the compensation, if any, claimed in the complaint, to determine the pecuniary jurisdiction of a Consumer Forum.”

17.       Since in the instant case, the value of goods i.e. the plot, in question, plus compensation claimed is well beyond Rs.1 Crore, the complaint is not maintainable before this Commission.

18.       In view of above, the complaint is dismissed with no order as to costs, being not maintainable before this Commission for want of pecuniary jurisdiction. However, the complainant is at liberty to file the complaint before the Consumer Fora, having pecuniary jurisdiction to entertain and decide the same, as per the Act.

19.       Certified Copies of this order be sent to the parties, free of charge.

20.       The file be consigned to Record Room, after completion.

Pronounced

17.10.2016.

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

[DEV RAJ]

MEMBER

 

 

[PADMA PANDEY]

 MEMBER

 

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