Punjab

StateCommission

A/11/1489

M/s Industrial Cables (India) Ltd. - Complainant(s)

Versus

Madhu Banati - Opp.Party(s)

R.S. Manhas

08 May 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE CONSUMER  DISPUTES  REDRESSAL COMMISSION, PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                   First Appeal No.1489 of 2011

 

                                                          Date of Institution: 05.10.2011

                                                          Date of Decision : 08.05.2015

 

M/s Industrial Cables (India) Ltd., SCO No.175-176, Madhya Marg, Sector 8-C, Chandigarh                                                                                                                                                                                                                                                         …..Appellant/Opposite Party No.1         

                                      Versus

 

1.       Mrs. Madhu Banati

2.       Sh. D.S Banati

 

Resident of Flat No.E-305, Ivory Towers, Sector 70, SAS Nagar, Mohali

 

                                                          …..Respondents /Complainants

         

First Appeal against order dated 07.09.2011 passed by the District Consumer Disputes Redressal Forum, Mohali

Quorum:-

 

 

          Shri J. S. Klar, Presiding Judicial Member.

          Shri. Vinod Kumar Gupta, Member.

          Shri Harcharan Singh Guram, Member

 

Present:-

 

          For the appellant                       :         Sh.Rampal, Legal Officer

          For the respondents                  :         Sh.Jatin Kumar, Advocate 

 

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

 

 

J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

          The appellant (the Opposite party No.1 in the complaint) has directed this appeal against the respondents of this appeal (the complainants in the complaint), challenging order dated 07.09.2011 of District Consumer Disputes Redressal Forum Mohali, accepting the complaint of the complainant and directing the OP No.1 now appellant to execute the sale deed by getting it registered of two flats and further the complainants to pay the difference of stamp duty and registration fee, which was enforced by issuance of the Punjab Government Notification in the year 2008, besides Rs.5,000/- as costs of litigation therefor. The instant appeal has been preferred against the same by the OP No.1, now appellant.

2.      The complainants have filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that complainants applied for two bedroom flats at Ivory Towers  to M/s Industrial Cables (1) vide application dated 01.11.1999 by making required payment. Flat number E-305 as per ICL's letter number ICL/RED/MKT/3466 dated 04.01.2000 and another Flat bearing number B-202 (5 bedroom) with a super area of 2200 sq.ft on 23.02.2002, vide ICL/RED/MKT/6408 dated 23.02.2002 with application no.464  dated 02.02.2002. On payment of all money including Rs.77000/- demanded as registration charges for conveyance deed and stamp duty charges demanded by the complainant before giving possession as per their registered notice 21.01.2001 for Flat No. E-305 and possession was given for second Flat No. B-202 on 11.09.2002. The promoter company found that it was not possible to arrange the execution of the conveyance deed by registering them and hence they refunded the entire amount charged for registration and stamp duty on 24.01.2001, vide cheque dated 16.01.2001 to the allottees. The OP/Company was not able to get the land allotted to them by PUDA on account of outstanding dues required to be deposited by ICL. The land on which ivory towers flats were constructed were registered in the name of ICL only on 24.03.2009 i.e. after 9 years of the possession of the flats. The OPs asked the allottees to register their flats without any fault. The complainants obtained NOC, vide promoters No.ICL/CHD/7661 and 7662 dated 19.09.2009. The Punjab Government revised the collector rate substantially in the meanwhile. Latest notification in this regard was issued, vide no.16/01/2009-ST-II/8674 dated 16.11.2009. Original allottee of PUDA and re-allottees along with their legal heirs were allowed to be charged at original allotted rates and as per collector rates applied, cost of the flat worked out on which stamp duty being charged Rs.18.62 lac against allotted price of Rs.11 lacs in respect of E-305, whereas this figure worked out for Flat no.B-202 as Rs.40 lac on the basis of the collector rates. The additional liability borne by the complainant for the above flats worked out to Rs.1.7 lacs (about Rs.61000 for E-305 and Rs.1.1. lacs for B-202). The allottee of the flats constructed by ICL on behalf of PUDA are charged at the current circle rates, which are much higher. The promoter/company was bound by agreement to get their conveyance deed registered in reasonable time before delivery of the possession of the flats. Payment of the stamp duty and registration charges were made as an essential condition in the allotment letter, as well as application for booking of the flat. The complainants have, thus, filed the complaint by directing the OPs to register their conveyance deed at the allotted rates, instead of current collector rates, to mitigate financial worries of the complainant or OPs be directed to bear the additional liability on this account, besides payment of Rs.50,000/- as  compensation for mental harassment.

3.      Upon notice, OP No.1 appeared and filed written reply raising preliminary objections that the jurisdiction of the Consumer Forum is excluded under Punjab Apartment Ownership Act 1995. The provisions of this Act applied to every apartment in any building  constructed or converted into apartment by the promoter before or after the commencement of the Act. The complaint is barred by time as  cause of action to file the complaint accrued to complainant on 04.01.2000, 16.01.2001 and at the most on 23.02.2002 and hence complaint is barred. The promoter company after execution of conveyance deed  in their favour on 24.03.2009, issued notices to all the flat owners on 26.03.2009 to get the sale deeds executed in their favour, but the complainants have not approached OP No.1 for this purpose, despite receipt of No Due Certificate. Flat No.B-202 is in the name of three allottees (i) Smt. Madhu Banati (ii) Sh.D.S Banati and (iii) Mr. Sharad Banati has not been impleaded as a party in the complaint. On merits, OPs admitted this fact complainant applied for two bedroom flats at Ivory Tower  and possession thereof was given to complainant. The OP/Company returned the amount of registration charges as there were some legal snags in the execution of sale deed and registration thereof. On account of  pendency of the dispute regarding rebate on the total price of land, the OP/Company filed an application under Section 45(7) of the PUDA Act 1995 before the Additional Chief Administrator GMADA against the illegal demand of Rs.1,78,97,570/-  raised by the Estate Officer GMADA. The appellate authority, vide order dated 31.01.2007 remanded the case to the Estate Officer  to recalculate the final amount and inform the OP/Company within one month.  The Estate Officer slept over the matter and did not comply with the order of the Appellate Authority despite repeated visits of the company officials to the office of the Estate Officer. The OP/Company filed Civil Writ Petition No.11729 of 2008 for issuing direction to GMADA to decide the pending issues within time bound period. The Hon'ble High Court, vide order dated 11.07.2008 issued directions to GMADA to decide the representation of the promoter/company within six weeks by passing speaking order. The Estate Officer, GMADA raised the illegal demand to Rs.3.97 crores and appeal was filed before the Additional Chief Administrator, GMADA. Against this order Appellate Authority, vide order dated 08.12.2008 allowed the appeal and directed the Estate Officer to give final demand within three weeks from the order. On the direction of the Appellate Authority, the amount was reduced to Rs.1,38,17,784/-. The promoter/company lost no time in depositing the demand raised by the Estate Officer, GMADA and got the Conveyance Deed executed in their favour. It was further averred that on account of delay on the part of the GMADA, the OP/Promoter Company suffered great financial hardship because the amount, which have been paid in 2009, which have been just half, had the Estate Officer, GMADA raised correct demand of the due amount. As Conveyance Deed was executed on 24.03.2009 in favour of OP/Promoter Company and intimation to this effect was given to the flat owners by sending them notices on 26.03.2009 for execution of the sale deeds. The OPs have already executed 176 sale deeds in favour of the different allottees. They have denied any deficiency in service  or unfair trade practice and thus, prayed for the dismissal of the present complaint.  

4.      The complainant tendered in evidence the affidavit of complainants Ex.CW-1/1, copy of allotment letter dated 4.1.2000, 23.3.2002 Ex.C-1 and Ex.C-2, possession letter of Flat No.305 Ex.C-3, possession letter of Flat No.B-202 Ex.C-4, letter dated 24.1.2001 Ex.C-5, letter dated  nil Ex.C-6, No due Certificate dated 19.09.09 of Flat No.B-202 and Flat No.E-305 Ex.C-7 and Ex.C-8, letter to FCR dated 13.6.09, 22.09.09 Ex.C-9 and Ex.C-10, newspaper cutting Ex.C-11, letter dated 27.11.2002 from PUDA to the OP Ex.C-12, letter dated 4.2.2011 to the OP Ex.C-13, receipt of Rs.77,000/- Ex.C-14, application form for allotment Ex.C-15, notification of Punjab Government dated 16.11.2009 Ex.C-16, letter dated 17.7.09 of GMADA Ex.C-17.   As against it, OPs tendered in evidence affidavit

 of Sh. A.K. Rampal, Authorized Signatory Ex.RW-1/1, copy of order of High Court dated 11.7.08 in CWP No.11729 of 2008 Ex.R-1, order of GMADA dated 08.12.2008 Ex.R-2, sale deed dated 9.4.09 Ex.R-3, notices dated 26.3.09 Ex.R-4 and Ex.R-5.  On conclusion of evidence and arguments, the District Consumer Disputes Redressal Forum Mohali, accepted the complaint of the complainant and directing the OP No.1 now appellant to execute the sale deed by getting it register of two flats and complainants to pay the different stamp duty and registration fee, which was enforced before issuance of the Punjab Government Notification in the year 2008, besides Rs.5,000/- as costs of litigation. Dissatisfied with the order of the District Forum Mohali,  the instant appeal has been preferred against the same by the OP No.1 now appellant.

5.      We have heard learned counsel for the parties have also examined the record of the case.   We called upon to decide this controversy, as to whether there is any deficiency in service or unfair trade practice on the part of the OPs in this case, resulting into financial hardship of the complainants. The pleaded case of the complainants is that registration charges prior to issuance of notification by Punjab Government was on the lower side and they have raised up subsequent to the issuance of the notification dated  11.11.2009 and hence complainant had to suffer unnecessarily financial implications due to deficient act of the OP No.1. We have respectfully considered the pleadings of the parties on the record. Evidence is required by us to settle this controversy between the parties. Ex.C-1 is document regarding booking of Flat No.E-305 by the complainant, Ex.C-2 is booking of Flat No. B-202 by the complainant, Ex.C-3 is physical possession of Flat No.E-305 Block E in Ivory Towers Sector 70, SAS Nagar Mohali to complainant by the OPs on 02.02.2001, Ex.C-4 is dated 01.09.2002 with regard to physical possession of Flat No.B-202 in Ivory Towers Sector 70, SAS Nagar to the complainant, Ex.C-5 is letter sent by the complainant to OP No.1 for refund of the registration and stamp money collected by the OPs for execution and registration of the sale deed, Ex.C-6 is letter sent to OP, Ex.C-7 is No Due Certificate/No Objection Certificate issued by the OPs in favour of the complainant its dated 19.09.2009. This document proved on the record that total consideration of Rs.19,80,000/- has been received by the OPs. It also proved that nothing is due towards the complainant and OPs have no objection for execution of the sale deed in their favour, this No Due Certificate pertains to Flat No.B-202, Ex.C-8 is another No Due Certificate, which pertains to Flat No.E-305, Ex.C-9 is letter addressed to The Financial Commissioner Revenue, Government of Punjab Chandigarh by various authorities including complainant protesting against the rise of the registration fee by means of the issuance of the notification, Ex.C-10 is letter addressed to the Financial Commissioner Revenue Punjab Government Chandigarh by the various authorities, Ex.C-11 is paper news to the effect that original allottees of Ivory Towers, Sector 70 requested the Punjab Government to consider the flat owners of PUDA approved builders, including Ivory Towers, at par with original allottees of PUDA and to register their conveyance deed at the original allotted price rather than price based on current circle rates which were revised in 2008. Ex.C-12 is letter addressed by PUDA to OPs to the effect that PUDA has allotted 5.135 acres of land to ICL at Site No.5, Sector 70 Mohali, vide letter no.A4/98/2068 dated 09.02.1998. Ex.C-13 is the reply sent by the complainant, Ex.C-14 is the receipt of the amount of Rs.77000/- by the OPs from the complainant on 21.12.2000. Ex.C-15 is the application for allotment by sale of a Flat /Dwelling Unit in Ivory Towers, Sector 70, SAS Nagar Mohali. It virtually contained the terms and conditions between the parties. Ex.C-16 is Government Notification dated 11.11.2009 ordering that consideration amount fixed at the time of the allotment of the immovable property by any Government/Semi Government Organization shall be charged for registration of document upon the consideration amount fixed by Government/Semi Government Organization, provided that document got registered up to 31st December 2009 by the original allottee. The complainants have been discriminated by means of this notification and they have been asked to get the sale deed registered at collector rates instead of the original prevalent rates when the flats were allotted to them.

6.      The OPs tendered affidavit of Sh. A.K. Rampal, Authorized Representative of the OP/Company is Ex.RW-1/1. Ex.R-1 is  order of High Court dated 11.07.2008 in writ petition No.11729 of 2008 in case Industrial Cables (India) Ltd... GAMADA & Others, Ex.R-2 is copy of order of Additional Chief Administrator Greater Mohali Area, Ex.R-3 is receipt regarding registration of the sale deed in favour of Devki Nandani Sharma.

7.      From the perusal of the above-referred evidence on the record, we find that the District Forum has burdened the liability on the OPs for increase in registration charges, being collector rates in this regard. The deficiency in service on the part of the OPs has to be proved by the complainant in this case. We find that OPs have been diligently pursing the remedies for the execution and registration of the sale deed by PUDA of the property in their names. They have even filed Writ Petition before the High Court, vide Ex.R-1 on the record. In addition to writ petition, they also took the matter in the court of Additional Chief Administrator Greater Mohali, vide order Ex.R-2.

8.      The above-referred documents have been proved on record this fact that OPs have not slept over the matter and they have been hotly pursuing the remedies available for settlement of the rebate matter, so that property is transferred to OP No.1. Unless and until OP No.1 holds clear marketable title in the property in question, it cannot  further execute the sale deeds thereof to the allottees. The District Forum held that OP No.1 now appellant is liable for the deficiency in service. The Apex Court in "Ravneet Singh Bagga Vs. KLM Royal Dutch Airlines & Anr." Reported in (2000) 1 Supreme Court Cases Page 66, has interpreted the term deficiency, as provided under the Act  and in Para -6 (relevant portion) observed as follows -

"The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service.

In case of bona fide disputes no willful fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance in the service can be informed (sic.). If on facts it is found that the person or authority rendering service had taken all precautions and considered all the relevant facts and circumstances in the course of the transaction and that their action or the final decision was in good faith, it cannot be said that there had been any deficiency in service."

9.      It is, thus, evident that OP now appellant had been diligently pursuing the cases to get the sale deed executed in its favour so that it could further execute the sale deeds in favour of the allottees. We find that the circumstances were beyond the control of OP No.1 in this case on account of pending litigation. OP No.1 held no marketable title till the property is transferred in its name by PUDA and it could further execute no sale deed in favour of the complainant thereof. We find no unfair trade practice or deficiency in service in this case on the part of the OPs, because the circumstances were actually beyond the control of the OPs due to pending litigation, which is proved on the record by virtue of Writ Petition as well as the order of the Additional Chief Administrator GMADA so placed on the record. The District Forum has not bestowed its attention on the above-referred points in the order under appeal. When the circumstances are beyond the control of a person, then he cannot be held to be deficient in service. Once the property is transferred to OP No.1 by PUDA, there is then no delay on its part in further execution of the sale deeds thereof in favour of the allottees.

10.    Even from the perusal of the agreement of sale, it has not been pointed out that any time was fixed for execution of the sale deed. Sale deeds were required to be executed within a reasonable time. Our own State Commission also took this view in First Appeal 148 of 2012 titled as "M/s Industrial Cables (India) Limited Vs. Anand Purak Singh," decided on 22.05.2012, wherein it has been held that in such type of circumstances, when the conveyance deed cannot be executed on account of pending litigation of the appellant, therefore, the appellant is not deficient in service and accordingly the complaint was dismissed.

11.    The point to be decided as to whether the complaint is within time or not? We concur with the findings of the District Forum on this point that complaint is within time. The complainants have no cause of action till execution of the sale deed in their favour and consequently the District Forum has held the similar complaint within time and we agree with the same in the reasoning so adopted by District Forum.

12.    Similarly next point is that the third allottee of the one flat has not been impleaded and hence the complaint merits dismissal. We find no substance in it. Even otherwise, anyone of the allottee can file the complaint on behalf of the others and we find no illegality in it. The order would enure even for the benefit of the non-party allottees.

13.    As a consequence of our above discussion, we find that on account of issuance of the notification by the Punjab Government, the allottee would be required to get the sale deed executed and registered at collector rates on the prevalent date of registration of the sale deed. OP could not execute the sale deed in favour of the complainant, as circumstances were beyond the control of OP No.1. Consequently, no deficiency in service has been found on the part of the OP No.1 in this case and similar view has also been taken by this Commission in "Ravneet Singh Bagga Vs. KLM Royal Dutch Airlines & Anr."(supra).

14.    In view of our above discussion, order of the District Forum is, thus, not sustainable. By setting aside the order of the District Forum, the appeal of the appellant is accepted and complaint of complainant  is hereby dismissed.

15.    The appellant had deposited an amount of Rs.2500/- at the time of filing the appeal. This amount with interest, if any, accrued thereon be refunded by the registry to the appellant by way of crossed cheque/demand draft after  45 days from receipt of copy of this order.

16.    Arguments in this appeal were heard on 06.05.2015 and the order was reserved. Now the order be communicated to the parties.

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

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

 

                                                               (VINOD KUMAR GUPTA)

                                                                        MEMBER

                       

                                                           (HARCHARAN SINGH GURAM)

                                                                          MEMBER

 

May 08     2015.                                                             

(ravi)