Punjab

StateCommission

CC/410/2016

Anil Kumar Sharma - Complainant(s)

Versus

Greater Mohali Area Development Authority (GMADA) - Opp.Party(s)

Ranjan Lohan

02 Feb 2018

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,    PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

 

                   Consumer Complaint No.410 of 2016

 

                                                          Date of Institution   :  28.12.2016      

                                                          Order Reserved on : 24.01.2018

                                                          Date of Decision     : 02.02.2018

 

Anil Kumar Sharma son of Sh. Khushi Ram , resident of H.No. 76, Modern Colony, Jalandhar City- 144001.

 

                                                                                                                                                                                                ….Complainant

                                      Versus

 

 

1.      Greater Mohali Area Development Authority, PUDA Bhawan, Sector 62, Mohali, Punjab through its Secretary/Chief        Executive Officer/Administrator

 

2.      The Estate Officer (H), GMADA, SAS NAGAR, Mohali, Punjab

 

                                                                             Opposite parties

 

Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986 (as amended up to date).

 

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member.

              Smt. Surinder Pal Kaur, Member.

Present:-

          For the complainant         :  Sh. Ranjan Lohan, Advocate

          For opposite parties         :  Sh. Anuj Kohli, Advocate

  …………………………………………………………………………………….

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                                     

                     The complainant has filed this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act) against OPs on the averments that OPs launched one housing scheme for the allotment of premium apartments of different categories as "Purab Premium Apartments", to be constructed and developed in Sector 88 Mohali Punjab. The complainant applied for category A Type 3 Apartment, vide application form no. 29029 by depositing Rs.6.90 lac, as earnest money equal to 10% of the total sale price of Rs.69 lacs of the apartment with OPs. He was successful in the draw of lots held on 20.03.2012 and thereafter letter of intent dated 29.06.2012 was issued to him for allotment of a residential apartment on a tentative price of Rs.69 lac. On receipt of letter of intent, he further deposited an amount of Rs. 13.80 lac being 20% of the sale price (totaling 30% of the total cost of the apartment). The balance payment of 65% of the price was to be paid in six half yearly installments of Rs.7,47,500/- each with 12% interest and the balance payment of 5% was payable at the time of delivery of possession of apartment. As per clause 3 of letter of intent, the possession of the apartment was to be handed over to allottee within a period of 36 months after completion of development works at the site from the date of issue of letter of intent i.e. 29.06.2012. He deposited 1st, 2nd and 3rd installments within the stipulated time totaling Rs.49,85,250/-  being 80% of the total sale amounts. He visited the site in 2014 and found that there was no development work, whatsoever on the spot. The possession was required to be delivered within 36 months on or before May 2015 after completion of development work to him by OPs. OPs have not completed the project timely for delivery of possession of the apartment. OPs wrote vague and hypothetical letter to complainant on 14.01.2016 about unpaid installments and asked him to deposit the receipt of payments of installments, failing which to cancel his allotment/letter of intent. The complainant visited the office of OPs personally with the request letter allowing him to deposit the balance amount, but OPs refused to accept the same. OPs cancelled his allotment of letter of intent in terms of Clause 2.3(II) and forfeited 10% of the total amount of consideration money, interest and dues payable in terms of Section 45(3) of the Punjab Regional and Town Planning and Development Act 1995. OPs ordered for refund of Rs.41,23,647/- to complainant, vide memo dated 15.03.2016 after deducting an amount of Rs.8,40,282/- plus Rs.21,321/- as service tax in compliance of cancellation letter dated 23.02.2016. The cancellation and forfeiture thereof is in violation of Section 45(1) & (2) of the Act 1995. OPs failed to deliver the  possession of the apartment to the allottee within stipulated period of 36 months. Act of cancellation of allotment letter and forfeiture of 10% of the total amount of the entire deposited amount by OPs is malafide, as per Clause 3(II) of letter of intent. OPs remained unable to deliver the possession of the apartment within the stipulated period to him. The allottee has right to withdraw from the above scheme of OPs with complete refund of the deposited amounts with 8% interest compounded annually. It is further averred that as per Clause 2.3(II) of letter of intent, the possession of apartment was not to be handed over until all dues are cleared. However, in the present case, the possession itself has not been delivered to various allottees despite deposit of full amounts by them with OPs. Clause 2.3(II) of letter of intent has thus becomes redundant upon the failure of OPs to complete the project within the stipulated period and to deliver the possession of the  apartments to its allottees. The complainant has, thus, filed the complaint praying that OPs be directed to refund the deposited amount of Rs.49,85,250/- along with 15% interest from the date of deposit and further to pay compensation of Rs.5 lac for mental harassment and Rs.55,000/- as costs of litigation.

2.                Upon notice, OPs appeared and filed written reply by raising preliminary objections by denying any deficiency in service or unfair trade practice on its part. It was averred that complainant purchased apartment for speculative purposes and for resale only and is not consumer of OPs. As per Clause 6 of letter of intent, the dispute is referable to Sole Arbitrator i.e. Chief Administrator GMADA or any person appointed/nominated by him in this regard for resolution. The complainant has already availed the remedy of reference of this dispute to the Arbitrator, which has been pending thereat before  him. The complainant defaulted in making the payment of installments of allotment price to OPs, hence Section 45(3) of Punjab Regional and Town Planning and Development Act 1995 has been invoked by cancelling the letter of intent and 10% of total amount of consideration money, interest and other dues payable has been forfeited in terms of provisions of Section 45(3) of the Act. On merits, complaint was contested by OPs by pleading that timely payment of dues by all allottees were insisted upon in this case and default even by single allottee affects the completion of schedule. As per Clause 2.3(V) of letter of intent, no separate notice for payment of installments was required to be sent to allottee. It was denied by OPs that action of cancellation/refund/forfeiture etc by OPs , vide office memo dated 23.02.2016 and 15.03.2106 are illegal, unjust and void. The OPs further averred that only those allottees, who committed default in making payment of the money to OPs, could not be delivered possession by developing their apartments. The complainant committed default in making the payment of instalments, as per Clause 2.3(V) of letter of intent. OPs prayed for dismissal of the complaint.

3.                The complainant tendered in evidence his affidavit Ex.CW-1/A along with copies of documents Ex.C-1 to Ex.C-11 and closed the evidence. As against it; OPs tendered in evidence affidavit of Smt. Satinderjeet Kaur Superintendent GMADA Ex.OP-A along with copies of documents Ex.OP-1 to Ex.OP-5 and closed the evidence.  

4.                We have heard learned counsel for the parties and have also examined the record of the case.

5.                We have to deal with this point, as to what is effect of invoking the arbitration proceedings by the complainant in this case, in view of Clause 6 of letter of intent Ex.C-3. The complainant has already invoked the arbitration proceedings in this case, as testified by Satinder Kaur in her affidavit Ex.OP-A on the record. She has deposed in her statement that as per Clause 6 of letter of intent dated 29.06.2012, the disputes are determinable by Chief Administrator GMADA or any person appointed by him in this behalf as arbitrator.   The complainant has already availed the remedy of reference of the dispute to the Arbitrator and it is pending for consideration before him. The complainant has already taken a particular path for adjudication of alleged dispute; hence, he is debarred from re-agitating the matter before Consumer Forum.  The evidence in this regard has also been led by OPs on the file. The complainant referred the dispute to Chief Administrator Greater Mohali Area Development Authority (GMADA) for resolution, as per Clause 6 of letter, vide Ex.C-10   dated 31.03.2016. The complainant requested Chief Administrator to initiate the arbitration proceedings for adjudication of the  matter, vide Ex.C10. This application of the complainant is supported by copies of postal receipts Ex.C-10-A to Ex.C-10-C on the record. The complainant has also filed action of claim before Chief Administrator Greater Mohali Area Development Authority (GMADA), vide Ex.C-11 on the record. There is no denial of this fact by complainant on the record. It is thus, established on record that complainant has already initiated the arbitration proceedings before Arbitrator by moving an application Ex.C-10, which is duly supported by postal receipts dated 31.03.2016. The complainant approached Arbitrator on 31.03.2016 for adjudication of the matter, as contemplated by Clause 6 of letter of intent. The instant complaint has been filed before this Commission on 28.12.2016 thereafter. It is, thus, proved on the file that complainant had already initiated the arbitration proceedings before Chief Administrator Greater Mohali Area Development Authority for adjudication of the matter and thereafter again approached this Forum subsequently. Undoubtedly, Section 3 of Consumer Protection Act 1986 gives additional remedy to the party for settlement of the dispute, but it is settled principle of law that, if party has already chosen a particular path for adjudication or resolution of his dispute, then subsequently the parties are debarred from approaching the Consumer Forum. It is duty of the parties to get the dispute resolved  from that particular path, which he has voluntarily chosen. In the instant case, complainant has already invoked the arbitration jurisdiction by applying to Arbitrator under Clause 6 of letter of intent before filing the instant complaint. It is for the complainant to exhaust his remedy before Arbitrator and if complainant is aggrieved with the same, then complainant has remedy to challenge the award before District Judge under Section 34 of Arbitration and Conciliation Act, 1996. The matter would have been different, had complainant straightway come to Consumer Forum, then Consumer Forum has additional remedy to decide the dispute. Consequently, we find that since complainant has already availed the arbitration remedy in this case and hence he should have exhausted that remedy to the hilt. Section 3 of CP Act 1986 only provides an additional remedy, in case any consumer adopted route of grievance before Consumer Forum ab initio. Herein, the complainant has adopted the route for redressal of his grievance before Arbitrator directly and in case he is not satisfied with the order of the Arbitrator, it is for him to challenge his award before District Judge under law. On this point, we find support from law laid down in "Dhir Singh versus Haryana State Electricity Board & Anr.," reported in Revision Petition no. 399 of 2003 decided on  24.04.2007 by National Commission.

6.                Once, we have come to this conclusion that the consumer complaint is not maintainable, since complainant has already invoked his remedy before Arbitrator under Clause 6 of letter of intent and as such subsequently, consumer complaint is not maintainable. We need not touch the final merits of the case since consumer complaint does not lie before this Commission, as held by National Commission in Dhir Singh versus Haryana State Electricity Board (supra)

7.                As a result of our above discussion, we hold that after invoking the arbitration proceedings before Arbitrator, the complainant is not entitled to file consumer complaint thereafter before this Forum and hence consumer complaint is held to be not maintainable on this score and deserves dismissal on this point

8.                Arguments in this complaint were heard on 24.01.2018 and the order was reserved. Certified copies of the order be communicated to the parties under rules.

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

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

 

 

                                                                (SURINDER PAL KAUR)

                                                                                MEMBER

February 2 ,  2018                                                         

(ravi)