Delhi

StateCommission

CC/876/2015

MR. RAJENDRA PRASAD SHARMA - Complainant(s)

Versus

M/S BPTP LTD. - Opp.Party(s)

17 Jul 2017

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

                                                                    Date of Arguments: 17.07.17

           Date of Decision:     19.07.17

Complaint No. 876/2015

In the matter of:

Mr. Rajendra Prasad Sharma

S/o Shri Rattan Chand Sharma

R/o Village- Dhana, Post Office-Simbhauli

District-Ghaziabad, U.P.

Mailing Address: 13-A, GH-01

MIG Flats, Sector-100

NOIDA-201301 U.P.                                                                                        ….Complainant

 

                                                                        VERSUS

M/S BPTP Ltd.

M-11, Middle Circle

Connaught Circus

New Delhi-110001

Thr. Its Director                                                                                           ……Opposite Party                     

CORAM

Hon’ble Sh. O.P.Gupta, Member(Judicial)

Hon’ble Sh. Anil Srivastava, Member

1.Whether reporters of local newspaper be allowed to see the judgment?  Yes

2. To be referred to the reporter or not? Yes

SHRI O.P.GUPTA

JUDGEMENT

          This order will dispose of two applications moved by the OP.  One is under section 8 Arbitration and Conciliation Act 1996 for referring the matter to arbitrator as per clause 33 of the flat buyer agreement dated 18.10.07.

2.       The complainant has not filed any reply to the above application.  However counsel for the complainant orally opposed the same. He submitted that similar question has been recently answered by three member bench presided over by Hon’ble President of National Commission vide order dated 13.07.17 in CC No.701/15 titled as Aftab Singh vs. Emaar MGF Land Ltd.  The said answer lays down that section 3 Consumer Protection Act provides for additional remedy and not alternative remedy.  It has also been held in the said order that arbitrator would be bound by the terms of the agreement which is generally tilted in favour of the builder.  As compared to consumer court can look into the fact whether the agreement is fair or arrived at under coercion and in conditions which were unfavourable to the complainant. So clause for arbitration cannot bar jurisdiction of consumer fora under Consumer Protection Act. The application is dismissed.

3.       The other application moved by the OP for disposal of the complaint is on dual ground.  One is that complaint is barred by limitation.  Offer of possession of the unit in question was given by OP to the complainant on 07.01.13.  Despite that the complaint was filed in September, 2015 after two years and is barred by section 24(A) of Consumer Protection Act. The other ground is that complainant is not a consumer as defined u/s 2(1)(d) Consumer Protection Act.  The complainant purchased the flat from OP for the purpose of investment to earn the profit by renting out.  The complainant actually leased out the flat to earn profit vide agreement Annexure R-1.  Moreover after having taken possession and after execution of conveyance deed in favour of complainant, he is no more a consumer as per the decision of National Commission in Harpal Arya vs. Housing Board Haryana II (2016) CPJ 36.

4.       The counsel for complainant submitted that mere leasing out of the premises is no bar to filing a complaint under Consumer Protection Act.  To that extent he appears to be correct but still effect of taking over possession and execution of conveyance deed remains to be decided.

5.       The complainant himself has mentioned in para 24 of the complaint that OP executed registered conveyance deed with regard to the subject flat in favour of the complainant. In para 4 of the complaint it has been mentioned that actual physical possession was handed over to the complainant only on 01.11.2013.

6.       The counsel for the complainant wanted to escape from the aforesaid fact on the plea that conveyance has been executed first and physical possession has been handed over later.  According to him possession must be delivered simultaneously with the execution of conveyance deed. But he could not cite any provision of law or case law in support of his submission.   Clause 2  of conveyance deed at page 33 of the bunch of WS filed by OP recite that vendee has completed due diligence to his complete satisfaction and undertake not to raise dispute in any of the above mentioned aspects either in present or in future.

7.       Not only this the taking over possession letter on 01.11.13 copy of which is at page 81 of the bunch of complaint recites that complainant has taken possession of the aforesaid unit to his complete satisfaction in terms of flat buyer agreement. He had no claim against the seller of any nature what so ever including but not limited to super built area, dimension, measurement, location, quality of construction and the material used etc. of the said unit.  The same goes on to add that complainant confirmed and declared that said declaration was given by him of his own free will and without any coercion.  The same bear signature of the complainant at point ‘A’.

8.         Counsel for the complainant wanted to get rid of the said confirmation/declaration by submitting that complainant has added words ‘under protest’ after printed word possession taken over.  Firstly words ‘under protest’ are vague.  It does not satisfy what nature of protest it was, in respect of what whether quality or anything else, protest was.  Secondly if there was any protest then complainant should not have put his signature at point ‘A’ below the aforesaid added words.

9.         In addition to the case law relied upon by OP in its application under consideration, there are other judgements also. In Smita Roy vs. Excel Construction II (2012) CPJ 204 National Commission took the view that after possession is taken over, one does not remain consumer.

10.       Still further in A.N.Singhal vs. DDA I(1996) CPJ 34 five members bench of National Commission took the view that after taking possession and after execution of conveyance deed complainant cannot be allowed to repudiate part of the contract and come forward with the allegation that there was deficiency in delivery of possession.

11.       To sum up application moved by the OP is allowed and complaint is dismissed.

            Copy of the order be sent to both the parties free of cost.

 

(ANIL SRIVASTAVA)                                                                                                        (O.P.GUPTA)

MEMBER                                                                                                                             MEMBER(JUDICIAL)