DISTRICT CONSUMER DISPUTES REDRESSAL FORUM II Udyog Sadan C 22 & 23 Qutub Institutional Area
(Behind Qutub Hotel) New Delhi 110016
Case No.184/2011
Dr. Pawan Kumar Jain
C 7 First Floor Arya Samaj Road
Adarsh Nagar
Delhi 110033 ….Complainant
Versus
1. M/s VXL Realtors Pvt. Ltd.
5th Floor Ajit Singh House
12 DDA Commercial Centre
Yusuf Sarai
New Delhi 110049
2. The Secretary
Panchvati Dham Sahkari Awas Samiti Ltd.
350 Shakti Khand III
Indirapuram Ghaziabad (U.P.) ….Opposite Parties
Date of Institution : 26.05.11 Date of Order : 30.11.18
Coram:
Sh. R.S. Bagri President
Ms. Naina Bakshi Member
Ms. Kiran Kaushal Member
ORDER
Naina Bakshi Member
The case of the complainant is that the complainant was a member of Panchulidham Sehkari Awas Samiti Ltd. by paying an amount of Rs.7 110/ vide receipt No.177 on 20.03.05 to acquire a HIG residential flat in Noida. The complainant also paid Rs.3 25 000/ as demanded by the society towards booking amount of category B flat vide receipt No.310 dated 22.04.06. Since the society failed to acquire the land till October 2006 the complainant resigned from the society and then became the member of Panchvati Dham Sehkari Awas Samiti Ltd. (OP No.2) and an amount of Rs.3 31 000/ was transferred to OP No.2 on 18.11.06 as intimated to the complainant vide letter dated 31.12.2006 by the Panchuli Dham Sehkari Awas Samiti. The OP No.2 issued receipt No.63 dated 18.11.06 for an amount of Rs.3 31 000/ . The OP No.2 demanded Rs.4 30 000/ towards registration money of HIG flat measuring 1360 sq. ft. and the balance of Rs.99 000/ was paid to the OP No.2 vide receipt No. 112 on 17.12.06. Later on the size of the HIG flat was reduced to 1330 sq. ft. The OP No.1 & 2 entered into MOU on 28.11.06 for purchase of flats for the members by OP No.1 from OP No.2. As per clause 1 on the page 5 of the specific term of the project 1 at Indirapuram the rate was fixed at Rs.2000/ per sq. ft. The OP No.1 & OP No.2 cleverly added another clause No.13 on page No.4 in which Rs.100/ was asked towards escalation cost. The escalation cost was changed at the time when there was economic meltdown all over the world and the prices of the property fell about 20 30% in the market. The MOU was for the purchase of 80 000 sq. ft. super area over 4840 sq. yds. of land. The OPs violated this clause and the flats purchased by the OP No. 1 are not in one block or adjacent block but mixed with the flats of builder and the characteristic of society was lost. The members were scattered in the “Eastern Height Project of the OP No.1. The OP No.1 & OP No.2 was exploiting the members of OP No.1 by forcing them to live distantly. The Bhoomi Poojan was organized on 21.01.07 on the portion of land which was allocated to the society but flats were not constructed on land earmarked for the society. After Bhoomi Poojan letter of allotment was signed on 10.04.07 by the complainant alongwith the OP No.1 & OP No.2. It is submitted that the complainant was supposed to pay the following amount to the OP No.1:
Cost of flat Rs.27 93 000/
Cost of covered parking Rs. 1 00 000/
Administrative charges Rs. 30 000/
Total Rs.29 23 000/
It is submitted that as per the tripartite agreement the complainant was supposed to pay the cost of the flat to the society named Panchvati Dham Sehkari Awas Samiti Ltd. for which he was a member. The complainant purchased the flat through the society. The society was bound to give the possession of the flat to him after receiving full and final payment in October 2009. As per clause 7 of the general terms of the MOU dated 28.11.06 the possession of the flat by the builder was to be given to the society and after that society had to deal with its individual members on its own. Also as per clause 10 of the same MOU the society only shall be responsible to clear all the dues before taking and handing over the possession of flats to its members. The OP No.1 had sent “No Dues Certificate” on 25.10.09 to the OP No.2 in respect of 6 members and his name appeared at Sr. No.1 of that certificate. The society requested the builder to handover the flat to these members but the builder refused to give the possession of the flat. Complainant asked for completion certificate from both the OPs vide letter dated 08.10.29 but the same was not provided to the complainant till that date. The OP No.1 entered into criminal conspiracy with the society i.e. OP No.2 for extortion of money from members by denying possession of the flat to the members of the society even after making full payment of cost of flats to the society. The OP No.2 builder demanded Rs.3 08 000/ through society illegally vide demand letter dated 28.02.10 even after full and final payment towards cost of the flat was made by the complainant as evident from the letter issued by the society for full and final payment. The amount included Rs.80 000/ towards other charges and Rs.2 28 000/ towards extra land charges which was never mentioned in the tripartite agreement and this was decided after four months of issue of “No Dues Certificate” by the society on 25.10.09. OP No.1 was charging for the same space again for which the OP No.1 had already charged in the form of super area. It is submitted that the complainant had to pay Rs.56 000/ extra as stamp duty for registration charges due to overcharging by the OP No.1. As per agreement the builder was bound to give possession of the flat to the complainant immediately on receipt of “No Dues Certificate” by the society but instead of handing over the possession of the flat. The complainant was asked to pay Rs.3 08 000/ . The builder refused to register the property in his name in case the complainant do not pay the amount of Rs.3 08 000/ to the builder directly instead of giving possession of the flat the builder sent a letter dated 28.05.2010 demanding Rs.4 67 400/ as outstanding payment against the flat No.A2/001 at “Eastern Height” Indirapuram. The complainant sent a notice on 04.06.10 to OP No.1 for legal action against illegal and unjustified demand. Since the registration of the flat was to be done immediately to get the benefit of income tax on housing loan the complainant had to paid Rs.2 80 000/ to get the registration of his flat in his name and paid Rs.80 000/ vide cheque dated 28.07.10 and Rs.2 00 000/ vide cheque dated 02.02.11. The OP No.2 encashed the cheque o Rs.80 000/ but returned the cheque of Rs.2 lakhs with direction to issue the cheque in favour of the OP 1. This is violation of agreement as the builder was not allowed to accept any money from the member directly. The complainant issued cheque No. 843202 to OP No.1 but this was lost/damaged by OP No.1 and he was again asked to issue another cheque and the complainant issued cheque dated 01.02.11 for Rs.2 lakhs in favour of OP No.1. After receiving Rs.2 80 000/ another “No Dues Certificate” was issued by the OP No.2 on 17.10.10 but the OP No.1 did not give possession till 14.01.11 though the OP No.1 2 was duty bound to give possession immediately on receipt of No Dues Certificate. The builder also charged Rs.1 15 337/ towards cost of electricity connection and maintenance charges on 20.08.08 but the electricity connection was given after the possession of the flat on 14.01.11. It is submitted that OP No.2 handed over non existent flat No.A2/003 to the society which was allotted to him in draw held on 19.07.09 at the office of the society when he visited the site to see the flat after the allotment of the flat but the complainant was shocked to find out that there was no flat No.A2/003 available for possession. The complainant brought this negligence of the builder to the OP No.2 immediately and was assured that the flat will be ready within one month. The complainant wrote a letter to the OP No.2 on 02.11.09 requesting to ask penalty from the builder as per clause 5 (e) of the agreement dated 10.04.07. As per the clause the builder had to pay Rs.5/ per sq. ft. per month if the possession of the flat was delayed beyond 24 months of date of start of construction. Since the builder failed to give possession even after more than 7 months and finally the complainant was allotted flat No. A2/001 on 08.03.10 but the possession of the same was not given till 14.01.11. Legal notice was sent to the OP 1 & 2 on 04.06.10 and 21.06.10 respectively. OP No.1 assured in the General Body Meeting of the society on 14.12.08 that the passage from main road to the society premises will be ready within 6 months but the same has not been provided till date. Thus the OP No.1 cheated the members openly. The builder had also charged Rs.31 000/ towards registration charges against market rate of Rs.15000 only. The complainant sent again letter to the OP No.1 on 12.10.10 for unusual delay in handing over the possession of the flat but the possession was given only on 14.01.11. Hence the OPs was guilty for charging more money than due delay in possession of the flat and deficiency in service. Hence the complaint has been filed with the following prayers:
i. Refund of extra money charged after issue of No Dues Certificate by the society (OP 1) Rs.2 80 000
ii. Refund of escalation cost
charged illegally @ 100/sq. ft. Rs.1 33 000/
iii. Penalty for late possession of flat
as per clause 5(e) of the agreement
@ Rs.5 per sq. ft. (6650)
per month from December 2009
to January 2011 Rs.86 450/
iv. Interest on Rs.1 15 837/ from
20.08.10 to 14.01.11 Rs. 8 690/
v. Interest on Rs.29 23 000/
from 11.10.09 to 14.01.11 Rs.5 69 985/
vi. Interest on Rs.80 000/ from 28.07.10
to 14.01.11 Rs. 6 600/
vii. Refund of excess stamp duty paid Rs.56 000/
viii. Refund of excess money charged
for registration Rs.16 000/
ix. Compensation for mental
agony and harassment Rs.2 00 000/
Total Rs.13 56 725/
OP 1 in the written statement has inter alia stated that the complaint is not maintainable as there is no cause of action against the OP No.1 nor the complaint has been filed within the limitation as provided in the Consumer Protection Act 1986. The OP No.1 has never received any amount from the complainant. It is submitted that the builder had never charged any amount from the complainant as alleged. OP No.1 has prayed for dismissal of the complaint.
In the written statement of OP No.2 has inter alia stated that the complaint is liable to be dismissed on the sole ground that this Forum lacks pecuniary jurisdiction to entertain the present complaint as the value of the flat is more than Rs.20 lakhs. This Forum lacks territorial jurisdiction also since the OP No.2 has been working for gain in Ghaziabad and all the payments were made in Ghaziabad and property in question is also situated in Ghaziabad and no part of cause of action arose within the jurisdiction of this Forum. It is submitted that the OP No. 2 is a Co operative Group Housing Society registered under the provisions of Uttar Pradesh Co operative Societies Act 1965 vide registration No.3936 dated 13.10.06. Since there was no scheme of Government for allotment of land to the Societies and to cater the need of members of OP No.2 in respect of providing affordable housing in the area of Ghaziabad OP No.2 after obtaining the consent of the members approached the OP No.1 for providing 80 000 sq. ft. area for the development and construction of 75 flats of different categories. The OP No.1 represented OP No.2 that the OP No.1 are going to develop and construct a multi story group housing complex under the name of ‘Eastern Height’ and had got the sanctioned site plan of the same. After satisfying about its title the OP No.2 after obtaining the permission from the members agreed to book flats in the aforesaid project and after several meeting and discussions the OP No.2 decided to pay a consolidate amount of Rs.2000/ per sq. ft. chargeable on super area on the agreed specification. But the OP No.1 insisted to OP No.2 for escalation charges as there was a likelihood of increase of labour wages cost of material etc. at last it was agreed by the OP No.2 would pay an escalation cost of Rs.100/ per sq. ft. on account of escalation charges and OP No.1 would not demand any extra charges on any account except those charges/tax etc. which would be levied in future by the Govt./local authorities and the same were to be born on pro rata basis. With these understanding a memorandum of understanding dated 28.11.06 was executed and signed by OP No.2 as well as OP No.1. It was also agreed that the OP No.1 would deal with the President and Secretory of OP No. 2 and they would deal with their members and in pursuance of bye laws of the society and OP No.1 also became a nominal member of OP No.2. The complainant booked HIG flat accordingly the OP No. 2 informed about the booking and size of the flat measuring 1330 sq. ft. vide letter dated 17.06.07 and also made demand accordingly. It also transpired from the records that the complainant also signed an allotment agreement on 10.04.07 was executed among complainant builder and society which also contains all the information regarding rate size and other conditions and it is clearly mentioned that the size of HIG flat was as 1330 sq. ft. The rates of the flat were decided with the consents of the members which is a part and parcel of the agreement and also members including the complainant were duly informed about the cost of the flat including the escalation charges. The complainant also applied for home loan in the bank after declaring the cost @ Rs.2100/ per sq. ft. only. It is submitted that as the OP No. 1’s construction was slow OP No.2 sent a legal notice on 18.01.10 and thereafter in the meeting in which the complainant was also present after thoughtful consideration by the majority of members on 11.02.10 a sub committee was also formed to discuss and settle the matter regarding payment towards extra land on ground floors payment of other charges EDC IDC FFC EEC etc. possession and re allocation of non existing flats with the builder and with complainant’s consent. The complainant was also appointed with one of the members of sub committee. As per the unanimous the decision of the sub committee it was decided that an Addendum after
approval of the sub committee be signed with the builder to resolve the matter amicably instead of going into any litigation. Addendum dated 24.02.10 was executed and signed between the builder and the society. It is submitted that as far as “No Dues Certificate” issued on 25.10.09 in respect of complainant payment are concerned it is clarified that only after raising this issue by the complainant as well as other members despite being the complainant was a active member in the resolution of disputes with the builder the complainant was intermingling the “No Dues Certificate” matter unnecessarily after execution and resolution of matter with the builder vide Addendum dated 24.02.2010. It is submitted that the non completion of the complainant earlier allotted flat i.e. A2/003 complainant alongwith Dr. Bharat Bhusan sent a letter dated 02.11.09 to OP No.2 before execution and signing of Addendum OP No.2 seriously took all matters with the builder and due to these efforts of the society as well as sub committee member OP No.2 got relocated the non existing flats. Accordingly complainant’s flat was also relocated alongwith other such like cases and the complainant was allotted flat No.A2/001 situated at ground floor. Since after the execution of the Addendum the cost of flat was increased accordingly OP No.2 sent a demand letter dated 28.02.10 to the complainant and the complainant’ s still has not paid the agreed amount while Dr. Bharat Bhusan had already paid the demanded amount and taken the possession of his relocated flat. The complainant’s flat was ready for possession on 31.03.10 but the complainant wants to avoid the penalty and delay the possession. The complainant had applied for issue of another NOC vide letter dated 14.03.10 whereby the complainant agreed to pay all the charges as demanded but the complainant has not paid the flat’s cost amount so far for which the complainant was liable for the interest on the due amount as per rules. It is submitted that the complainant being member of the society are part of the society and society is being run and governed with the majority and it is not possible to satisfy all the members in all respect. Being democratic institution all the powers in the society are vested in the hands of the members. In case the complainant still has any query the complainant is welcomed to the office of the society on any Sunday when all the executive members will be there alongwith the other members to resolve complainant’s quarries. OP No.2 has prayed for dismissal of the complaint.
Complainant has filed the rejoinder to the written statement of OP No.2 and reiterated the averments made in the complaint.
Complainant has filed his own affidavit in evidence. On the other hand affidavit of Sh. Prabhjeet Singh Director on behalf of the OP 1 and affidavit of Sh. Deepak Mehta President behalf of the OP No.2 have been filed in evidence.
Written arguments have been filed on behalf of the parties.
We have heard the arguments on behalf of the complainant and OP No.2. No one has appeared on behalf of the OP No.1 to advance oral arguments despite opportunity given in this behalf.
We have also gone through the file very carefully.
Admittedly the complainant had booked a flat with the OP No.2 and paid total cost of the flat of Rs.29 23 110/ including Rs.100/ as membership fee. The complainant has filed various receipts issued by OP No.2 as Annexure I to VIII. The MOU dated 28.09.06 has been filed as Annexure IX. The complainant has filed the demand letter issued by the OP No.2 dated 05.10.09 as Annexure XX. No Dues Certificate issued by the OP No.2 dated 25.10.09 has been filed as Annexure XXI. The complainant issued a letter to the OP No.2 dated 08.10.09 requesting the OP No.2 to approach the developer /builder to pay the penalty of delay for possession of the flat @ Rs.5/ sq. ft. w.e.f. December 2008 as per agreement. The OP No.2 issued a letter to the complainant regarding demand of balance payment dated 28.02.10 as Annexure XXIII. The OP No.1 issued a letter dated 28.05.10 to the complainant regarding outstanding payment and watch and ward charges as Annexure XXV. The complainant sent a legal notice dated to the OP No.1 dated 04.06.10 as Annexure XXVI. The complainant paid Rs.2 lakhs to the OP No.2 as Annexure XXVII. The OP No.2 issued a “No Dues Certificate” Annexure XXVIII. The OP No.1 issued an acknowledgment receipt Annexure XXIX. The complainant sent a letter dated 02.11.09 to the OP No.2 regarding delay in possession of the flat Annexure XXXI. The OP No.2 vide letter dated 08.03.10 issued an allotment letter to the complainant as Annexure XXXII. The complainant sent a legal notice to the OP No.2 as Annexure XXXIII. The OP No.2 sent a possession letter dated 28.06.10 as Annexure XXXIV. The OP No.1 sent a letter dated 20.10.10 regarding NOC as Annexure XXXV. The complainant filed the minutes of the General Body Meeting dated 14.12.08 Annexure XXXVI. The OP No.1 issued an acknowledgment dated 30.10.10 to the complainant as Annexure XXXVII. The complainant vide letter dated 12.10.10 sent a letter to the OP No.1 for unusual delay and handing over the possession. The OP 2 has filed the copy of Addendum dated 24.02.10 which we mark as Annexure A for the purposes of proper identification and the same had been signed by the OPs.
The OP No.2 has filed the copies of two judgments rendered by the Hon’ble National Commission passed in Amrish Kumar Shukla & 21 Ors. Vs. Ferrous Infrastructure Pvt. Ltd. CC No.97/2016 decided on 07.10.16 wherein it observed as under:
“ 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 .
In a complaint instituted under Section 12(1) (c) of the Consumer Protection Act pecuniary jurisdiction is to be determined on the basis of aggregate of the value of the goods purchased or the services hired or availed by all the consumers on whose benefit the complaint is instituted and the total compensation claimed in respect of such consumers.”
In the case of T. K. A Padmanabhan Vs. Abhiyan CGHS Ltd. R.P. No.1942 of 13 decided on 04.01.16 wherein it is held as under:
“9 It is an admitted fact that petitioner had taken the physical possession of the flat on 27.2.2004 though there was delay of 11 months in giving possession on behalf of the respondent. However the consumer complaint was filed on 8.8.2005 that is about one and half years after petitioner got the possession. There is nothing on record to show that at the time of taking possession of the flat petitioner had lodged any protest with regard to delay or took conditional possession. When petitioner had the possession of the flat on 27.2.2004 unconditionally and without any protest thereafter he ceased to be a Consumer. The agreement executed between the parties comes to an end. Thus on the date when Consumer Complaint was filed there was no privity of contract between the parties. As such the consumer complaint on the face of the it is not maintainable.”
In view of the Ambrish Kumar Shukla’s case (supra) the complainant himself has stated that he has paid Rs.29 23 110/ including Rs.100/ as membership fee to the OPs hence this Forum has no pecuniary jurisdiction to decide the present complaint.
The judgment passed in the case of T. K. A Padmanabhan (supra) applies to the facts of the present case as the flat was allotted to the complainant on 14.01.11 and the present complaint had been filed on 26.05.11 i.e. after complainant got the possession of the flat. There is no evidence on the record to shows that at the time of taking possession of the flat the complainant had lodged any protest in writing with regard to delay. Therefore the complainant’s ceased to be a consumer and he was not a consumer at the time of filing of the present complaint.
In view of the above discussion we do not find any merit in the present complaint. We dismiss the same with no order as to costs.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 30.11.18
